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STUDIES 



IN 



HISTORY AND JURISPRUDENCE 



Digitized by the Internet Archive 
in 2011 with funding from 
The Library of Congress 



http://www.archive.org/details/studiesinhistoryOObryc 



STUDIES 

IN HISTORY AND 

JURISPRUDENCE 



BY 

JAMES BRYCE, D.C.L. 

AUTHOB 01 

"THE HOLY ROMAN EMPIRE," "THE AM] RI< '. COMMONWEALTH," ETC. 
tORMERLY REGIUS PROFES 01 ' IVIL LAW IN THE UNIVERSITY 

OF OXFORD; HONORARY FELLOW OF ORIEL AND ' 

COLLEGES, CORRESPONDING MEMBER OF THE 
INSTITUTE OF FRANCE 



OXFORD UNIVERSITY PRESS 

AMERICAN BRANCH 

New York : 91 and 93 Fifth Avenue 

LONDON : HENRY FROWDE 









Z\ 



4-q 



-ot 



Copyright, iqoi, by 

OXFORD UNIVERSITY PRESS 

AMERICAN BRANCH 



Press of J. J. Little & Co. 
Astor Place, New York 






H 



THIS VOLUME WAS TO HAVE BEEN OFFERED 
TO HENRY SIDGWICK (LATE PROFESSOR OF 
MORAL PHILOSOPHY IN THE UNIVERSITY OF 
CAMBRIDGE) WITH WHOM I HAD OFTEN DISCUSSED 
THE TOPICS IT DEALS WITH, AND IN WHOM 
I HAD ADMIRED, DURING AN INTIMATE FRIEND- 
SHIP OF NEARLY FORTY YEARS, A SUBTLE AND 
FERTILE MIND, A CHARACTER OF SINGULAR PURITY 
AND BEAUTY, AND AN UNFAILING LOVE OF TRUTH. 

IT IS NOW DEDICATED TO HIS MEMORY. 



PREFACE 

This volume contains a collection of Studies com- 
posed at different times over a long series of years. It 
treats of diverse topics: yet through many of them there 
runs a common thread, that of a comparison between 
the history and law of Rome and the history and law 
of England. I have handled this comparison from se- 
veral points of view, even at the risk of some little 
repetition, applying it in one essay to the growth of the 
Roman and British Empires (Essay I), in another to 
the extension over the world of their respective legal 
systems (Essay II), in another to their Constitutions 
(Essay III), in others to their legislation (Essays XIV 
and XV), in another to an important branch of their 
private civil law (Essay XVI). The topic is one profit- 
able to a. student of the history of either nation ; and it 
has not been largely treated by any writers known to 
me; as indeed few of our best known historians touch 
upon the legal aspects of history. 

Two Essays (III and IV) embody an effort to examine 
political constitutions generally from comparatively 
unfamiliar points of view. Five (IX, X, XI, XII and 
XIII) are devoted to the discussion, in a non-technical 
way, of problems in jurisprudence which have both a 
theoretical and a historical — to some extent also a prac- 
tical — side. Another sketches in outline the early his- 
tory of Iceland, and the very peculiar constitution of 
the primitive Icelandic Republic. Three others relate 
to modern constitutions. One contains reflections on 
the history of the constitution of the United States, a 
second describes the systems of the two Dutch Repub- 



viii PREFACE 

lies in South Africa, and a third analyses and comments 
on the constitution recently created for the new Com- 
monwealth of Australia. 

My aim throughout the book has been to bring out 
the importance, sometimes overlooked, of the constitu- 
/] tional aij^Je^aljej£mejitjn_history, and to present topics 
" which, because somewhat technical, often repel people 
by their apparent dryness, in a way which shall make 
them at least intelligible — since they can hardly be made 
seductive — to a reader who does not add to a fair gene- 
ral knowledge of history any special knowledge of law. 
Technicalities cannot be wholly avoided; but I hope 
to have indulged in none that were not absolutely 
necessary. 

The longer one lives the more is one impressed by 
the close connexion between the old Greco-Italian 
world and our own. We are still very near the ancients ; 
and have still much to learn from their writings and 
their institutions. The current of study and education 
is at present setting so strongly towards the sciences 
of nature that it becomes all the more needful for those 
who value historical inquiry and the literature of the 
past to do what they can to bring that old world into 
a definite and tangible relation with the modern time, 
a relation which shall be not only stimulative but also 
practically helpful. 

None of these Studies have previously appeared in 
print except two, viz. those relating to the United States 
and to the two Dutch Republics; and both of these have 
been enlarged and revised. My thanks are due to my 
friend Professor Herbert B. Adams of Johns Hopkins 
University, Baltimore, and to the proprietors of the 
Forum magazine respectively for permission to repub- 
lish these two. 

Some Studies were (in substance) delivered as Public 
Lectures at Oxford, during the years 1870-1893 (when 
I held the Regius Professorship of Civil Law there), 
pursuant to the custom which exists in that University 



PREFACE ix 

for a professor to deliver from time to time discourses 
dealing with the wider and less technical aspects of his 
subject. All these have, however, been rewritten for 
publication; and whoever has had a similar experience 
will know how much more time and trouble it takes to 
rewrite a discourse than to compose one de novo. Two 
Lectures, delivered one when I entered on and the other 
when I resigned the professorship, have been appended, 
in the belief that they may have some interest for mem- 
bers of the University and for those who watch with 
sympathy the development of legal teaching in England. 

I have endeavoured to bring up to date all references 
to recent events, so that when such events are mentioned 
the book may be taken to speak as from 1900 or 1901. 

As it is now nine years since I was obliged (when I 
entered Mr. Gladstone's Ministry in 1892) to intermit 
any minute study either of Roman or of English law, 
it is probable that the book may disclose an imperfect 
knowledge of facts and views given to the world during 
those nine years. Under these conditions I might have 
wished to keep the book longer before publishing it. 
But life is short. Some of the friends to whose com- 
ments and criticisms I had most looked forward while 
composing these Studies have already passed away. So 
it seemed better to let what I have written, under the 
constant pressure of other duties, go forth now. 

Among the friends whom I have to thank for informa- 
tion or suggestions are Professors A. V. Dicey, Sir F. 
Pollock, Henry Goudy, and Henry Pelham of Oxford, 
Sir Courtenay Ilbert (Parliamentary Counsel to the 
Treasury), Dr. C. L. Shadwell and Mr. Edward Jenks 
of Oxford, Dr. F. Sigel of Warsaw, and Mr. Jon 
Stefansson of Iceland. 

The Index has been prepared by Mr. J. S. Cotton, 
to whom I am indebted for the care he has bestowed 
upon it. 

June 27, 1901. 



CONTENTS 



ESSAY I 



The Roman Empire and the British Empire in 
India 

Conquest or Absorption by modern European nations of the 
less advanced races ....... 

Creation by this process of a sort of unity of mankind 

Earlier effort of Rome to unify mankind . 

Part borne by England in the work of ruling and civilizing 
new territories ........ 

The Colonies of England : the British Empire in India 

Position of Rome and England respectively in their Empires 

Origin of the British Indian compared with that of the Ro- 
man Empire ........ 

Conditions favouring Roman and British Indian conquest 

Military character of Roman and British rule 

What the Roman and the English conquerors have owed to 
natural frontiers . . . .- 

Strength of the Roman and British armies . 

Efforts to find a scientific frontier 

The Romans and English as Road and Railway Builders 

Success of both in maintaining internal order and security 

Character of Roman and British administration . 

Despotic system : measure of self-government left to the 
subjects 

Variations in provincial administration in Roman Empire 
and India ........ 

Revenue and taxation of the two Empires . 

Employment of native subjects in civil and military posts 

Civil rights of conquerors and of subjects 

Respect shown to native religions and customs : contrast of 
religious feeling in ancient and in modern world . 



1-7 1 

i 

2 

3 



4 
7 

7 

9 
ii 

12 

15 
16 
18 
*9 

22 

25 

2 9 
31 

35 
38 

42 



xii CONTENTS 

PAGE 

Character of the conquerors as a source of their strength . 48 
Contrasts between the two Empires : geographical position 

of the ruling race ........ 5 1 

Fusion of Romans and provincials : no similar fusion of 

English and Indians ....... 52 

Influence of Climate, of Colour, of Religion .... 53 

Languages and literature in Roman Empire and in India . 59 
Influences which favoured fusion in Roman Empire absent 

from India ......... 62 

Retroactive influences of the provinces on Rome and of 

India on Britain ..... ... 64 

What the experience of the English in India has proved . 67 

Causes which overthrew the Roman Empire ... 68 
Probable future of British power in India . . .69 

ESSAY II 

The Extension of Roman and English Law through- 
out the World 72-123 

Geographical areas now covered by Roman and by English 

Law .......... 72 



Extension of Roman Law by conquest 
Methods of Legal Administration in the provinces 
Gradual assimilation of Roman and Provincial Law . 
Establishment of one law for the Roman Empire 
How the Romans were able to create an imperial law 



94 

97 

100 

103 



Spread of Roman Law after the fall of the Western Empire 89 
Diffusion of English Law over regions settled or conquered 
Legal systems which the English found in India . 
Policy followed by the English in dealing with Indian Law 

Codification in India 

Reciprocal action of English and Native Law on one another 106 
Merits and working of the Anglo-Indian Codes . . . 108 
Roman Law in the Empire compared with English Law in 

India . . . . 114 

Probable future of English Law in India . . . .118 
English and Roman Law over the world . . . 

ESSAY III 
Flexible and Rigid Constitutions . . . 124-215 
Observations on the Constitutions of Rome and England . 124 



75 
77 
83 
84 
88 



CONTENTS 

Old Classification of Constitutions as Written and Un 
written ......... 

Proposed new classification . . 

Flexible Constitutions : how far distinguishable from laws 
in general ........ 

Origin of Flexible Constitutions ..... 

Strength and weakness of Flexible Constitutions . 
Such Constitutions are rather elastic than unstable 
Illustrations from the Constitutions of Rome and England 
Dangers possibly inherent in Flexible Constitutions 
Flexible Constitutions suited to aristocratic governments 
Checks applied in Rome and in England 
Influence of Constitutions on the mind of a nation 
Illustrations from Rome and England 
Capacity of Constitutions for Territorial Expansion 
Enumeration of existing Rigid Constitutions 
Circumstances under which Rigid Constitutions arise . 
Enactment and amendment of Rigid Constitutions 
Various modes now in use for amending them 
How far can Rigid Constitutions be definite or complete ? 
Stability of Rigid Constitutions ..... 

The interpretation of Rigid Constitutions 

Contrast of Anglo-American doctrines with those of the 

European Continent 

American views as to Interpretation .... 
Suitability of Rigid Constitutions to Democracies 
Recent changes of opinion in the United States and England 
Probable future of the two types of Constitution 
Proposals for federalizing the British Constitution 
Possible creation of new States and Constitutions 

ESSAY IV 



126 
128 

132 
136 
J 39 
143 
144 
149 
152 

155 
158 
161 
164 
167 
170 

174 
178 
184 
187 
193 

r 95 
196 
198 
202 
205 
207 
210 



The Action of Centripetal and Centrifugal Forces 

on Political Constitutions .... 216-262 

The influence of aggregative and disjunctive forces on po- 
litical societies ........ 216 

Tendencies which may act either Centripetally or Centrifu- 

gally 221 

Influences of Interest and Sympathy ..... 222 

Illustrations of the action of Racial and Religious sentiment 224 



xiv CONTEXTS 

PAGE 

In the progress of civilization, material interest and senti- 
ment may be opposed . . . . . • . . 228 

How Constitutions may use the existing Centripetal and 

Centrifugal forces ........ 229 

Illustrations from Commerce, Law and Religion . . . 232 

Instances of the troubles caused by Racial or Religious sen- 
timent .......... 238 

Methods by which Constitutions may disarm or regulate the 

centrifugal forces : illustrations 242 

Difficulties due to differences of colour in races . . . 245 

How the Constitutions of the United States and Switzerland 

have acted ..'....... 250 

The Centripetal force generally, but not always, dominant 

in European history . . . . . . .254 

Effects of Conquest and of Dynastic Succession . . . 256 

Probable future strength of the centrifugal and centripetal 

forces respectively 259 

Present tendency to the enlargement or consolidation of 

States is not necessarily permanent .... 261 



ESSAY V 
Primitive Iceland .... 

Discovery and Settlement of Iceland . 

Beginnings of a Polity : the Thing 

Rise of the Go8i or Priest-Chieftain 

The first political constitution of the island 

Judicial organization and powers of the Althing 

The Speaker of the Law .... 

Thingvellir and the meetings of the Althing 
General character of the Icelandic Republic 
Growth and character of the law of Iceland 
Complexity of the constitution and the law . 
Sources of our knowledge of the law . 
Illustrations of features of the early law 
An action for the ejectment of ghosts . 
The Judicial Duel : Story of Gunnlaug Snake's Tongue 
Helga the Fair ...... 

The introduction of Christianity . ■ . • . ■ 

Reflections on the early history of Iceland . 

Fall of the Republic : subsequent fortunes of the isle 



263-300 

. 263 

. 266 

. 268 

. 271 

. 274 

. 275 

. 276 

. 280 

. 282 

. 283 

. 287 

. 288 
291 



and 



292 
294 
296 
299 



CONTENTS 



ESSAY VI 



The Constitution of the United States as seen in 

the Past 301 

Value of contemporary views of an institution 

The Federalist : Alex. Hamilton and James Madison 

The United States in A. D. 1788 

Predictions of the opponents of the New Constitution . 
Views of its supporters : dangers feared by them 
Examination of the predictions of 1788 
Characteristic merits and defects of American Democracy 
only slightly foreseen ..... 

The Democracy in America of Alexis de Tocqueville 
Merits and flaws in Tocqueville's study of the United States 
His insufficient knowledge of England 
His preoccupation with France .... 

The deficiencies observable in his book scarcely affect its 
present value ....... 

Condition of the United States in Tocqueville's day 

His description of the salient features of the nation 

Advantages which he conceives Democracy to have secured 

Evils he discovers in American Democracy 

Causes which in his view maintain Republican government 

His forecasts : the negroes : weakness of the Federal Union 

Points omitted in his description ..... 

Chief events in the United States since Tocqueville's time 

Chief political changes of the last sixty-seven years 

Examination of Tocqueville's predictions 

Summary of Tocqueville's conclusions 

General course of events in America since 1788 . 

What Tocqueville would say to-day 



-358 

301 
302 

303 
307 
309 
3H 

317 

319 
320 

323 

324 

327 
328 
332 
337 
33* 
34o 
34i 
345 
347 
348 
349 
355 
357 
357 



ESSAY VII 

Two South African Constitutions . . . 359-390 
Originality of the Constitutions of the two Dutch Republics 359 
Circumstances under which they arose .... 361 
Constitution of the Orange Free State ..... 364 
Constitution of the South African Republic (Transvaal) . 369 
Observations on the Constitution of the South African Re- 
public 374 



xvi CONTENTS 

PAGE 

Is it a Rigid or a Flexible Constitution ? 375 

Controversy as to the so-called ' testing power . . . 378 

The Constitution is certainly a Flexible one .... 379 

Observations upon both these Constitutions . . . 380 
Comparison of these Constitutions with that of Britain and 

that of the United States 383 

Relations of Executive and Legislature in these Dutch Re- 
publics 385 

Practical Working of the Constitution of the Orange Free 

State 387 

Working of the Constitution of the South African Republic 388 

Postscript 389 

ESSAY VIII 

The Constitution of the Commonwealth, of Au- 
stralia . . . - 391-462 

Interest attaching to the new Constitution of Australia . 391 
Origin and progress of the movement for federalizing Au- 
stralia .......... 394 

Causes which induced Federation 398 

Influence of a Pan-Australian sentiment .... 401 

Physical and racial conditions favouring Federation . . 403 
Comparison with the conditions of the United States and of 

Canada .......... 406 

Two leading types of Federal Government . . . . 408 

Distribution of powers between the Nation and the States 

in the Australian Constitution ..... 410 

Position of the Australian States under the Constitution . 413 
Differences from the Federal systems of the United States 

and of Canada ........ 416 

The National Government : few restrictions on its powers . 419 

The Legislature : Representation of the States in the Senate 420 

The House of Representatives ...... 422 

The Executive ......... 424 

The Judiciary ......... 425 

Question as to Constitutional Appeals : the British Govern- 
ment yield to Australian sentiment .... 426 

Intended working of the scheme of Government : The 

Cabinet . . . . . . . . '. 428 

Provision against legislative deadlocks .... 431 



CONTENTS 

Relations of the Two Houses ..... 
Financial provisions : railways and rivers . 
Location of the national capital : admission of New States 
Mode of amending the Constitution .... 
Relations of the Australian Commonwealth to the British 

Crown . . . . . ■ . 
General comparison of the Australian Constitution with that 

of the United States ...... 

Comparison with that of the Dominion of Canada 

Further observations on the Constitution 

It is less strictly Federal and more National than that of th 

United States 

Its highly democratic character 

It contemplates a party system ..... 
Difficulties which may arise from the existence of a third 

party 

What political issues are likely to arise in Australia ? 

Probable prominence of Economic questions 

Possible creation and admission of New States 

Will New Zealand enter the Federation ? . . . 

Tendencies to consolidation may be strengthened by dis 

putes with foreign powers 

Future relations of Australia to Britain 



432 
436 

436 
437 

438 

440 
440 
443 

445 
447 
450 

45i 

452 

455 
457 
458 

460 
460 



ESSAY IX 

Obedience 463-502 

Different Theories of the Nature of Political Obedience . 463 

The grounds of compliance in general : Indolence . . 467 

Deference and Sympathy 469 

Reason and Fear 472 

Respective strength of these springs of Obedience . . 474 
Will as a political force : Illustrations from the East . . 475 
Formation of the habit of Obedience in the individual . 478 
Influences forming Obedience in early societies . . . 479 
Slight interest of men in liberty for its own sake . . . 482 
Is the tendency to obey likely to decrease ? . . . . 484 
Influences apparently making for subordination . . . 485 
What may be hoped for the future of democratic govern- 
ment 488 

How a pessimist might view existing conditions . . . 489 



xviii CONTENTS 

PAGE 

Conclusion : The disposition to obey will be permanent . 496 
Note on the application to the definitions of Jurisprudence 

of a theory of Obedience 499 

ESSAY X 

The Nature of Sovereignty 503-555 

Confusions regarding the term Sovereignty .... 503 

Sovereignty de iure and de facto must be distinguished . 505 
Sovereignty de iure exists in the sphere of law only, and is 

not concerned with obedience 509 

Sovereignty de facto : concrete instances . . . .511 
Relations of Sovereignty de iure to that de facto . .515 

Action and reaction of each on the other .... 519 
The Roman doctrine of Sovereignty : the people are the 

source of political power 527 

Mediaeval views of Sovereignty : Emperor and Pope . . 529 

New theories of the sixteenth and seventeenth centuries . 531 

Bodin, Althaus, Hobbes 533 

Relation of Hobbes' system to the events of his time . . 534 

Bentham revives Hobbes' doctrine ..... 536 

Views of John Austin : illustrations of their unsoundness . 537 
Confusion of various questions regarding Sovereignty which 

are really distinct ........ 541 

Rights in the moral sphere of Sovereignty de iure and Sove- 
reignty de facto 544 

Sovereignty in International Relations .... 546 

Sovereignty in a Federation ....... 549 

Conclusion : Theoretical Controversies regarding Sove- 
reignty have mostly had their origin in current politics . 552 

ESSAY XI 

The Law of Nature 556-606 

Origin of the notion of Nature as a ruling force . . . 556 

It is different from modern conception of the Laws of Nature 560 

Nature as a force in human society 563 

The term ' Natural ' as applied to Customs and Laws . . 564 

St. Paul and the Greek philosophers on Natural Law . . 566 

The Roman Law of the Nations {Ins Gentium) . . . 570 

How the 'common law of the nations ' was formed . . 572 

Cicero on the Law of the Nations and Law of Nature . . 575 



CONTENTS xii 

PAGE 

Growth of the idea of Natural Law among the jurists . 578 



Practical identification of Ius Gentium and Ius Naturae 
Points of difference which remained : Slavery 
Extension of Roman citizenship removes the need for a Ius 
Gentium ........ 

Senses in which the jurists use the term ' Nature ' 



581 
583 

585 
586 



Value and practical influence of the notion of Natural Law 588 

The Law of Nature and Law of God in the Middle Ages . 593 

The Law of Nature in Modern Times .... 597 

Its relation to the Law of England ..... 599 

Its influence on the rise of International Law . . . 602 

' Natural Law ' as meaning a Philosophy of Law . . 604 
Conclusion : Comparative quiescence of the idea in recent 

times 604 

ESSAY XII 
The Methods of Legal Science .... 607-637 
No Philosophy of Law among the Roman Jurists ; is such a 

Philosophy necessary or serviceable ? . ... 607 

Four Methods employed in Legal Science .... 609 

The Metaphysical Method : German Naturrecht . . 609 

The Analytic Method : the Benthamites .... 612 

Errors in John Austin's use of it . . . . . . 614 

The Historical Method 617 

The Comparative Method ....... 619 

Value of these four Methods respectively .... 622 

How they may best be applied to Legal Study . . . 624 
Did the Romans suffer from having no general Philosophy 

of Law ? 628 

Merits observable in the Roman Jurists : comparison of 

their treatises with those of English lawyers . . 630 
Summary : The Roman Jurists are philosophical in spirit 

and in their practical handling of law .... 636 

ESSAY XIII 
The Relations of Law and Religion . . 638-668 

Apparent Antagonism of Law and Religion . . . 638 
Close connexion of Law and Religion in early states of 

Society .......... 640 

Differences in this respect between different peoples . . 643 



CONTENTS 



PAGE 

The Jews in Roman times : primitive Christianity . . 644 

Islam ; identification of Law with Religion . . . 646 
Illustrations from a Musulman University : the Mosque El 

Azhar at Cairo 646 

Description of El Azhar and its Teaching .... 647 

Course of Instruction : Graduation: Endowments . . 651 
Resemblances of El Azhar to the European Universities of 

the Middle Ages 656 

Causes of the arrested development of Musulman Univer- 
sities .......... 658 

Nature and consequences of the Musulman identification of 

Law and Religion ........ 658 

Identity of State and Church under Islam .... 663 

How Christianity avoided a similar identification . . 665 

ESSAY XIV 

Methods of Law-making in Rome and in Eng- 
land 669-744 

Relations of the History of Law to the Constitutional or 

Political History of a Country 669 

Law-making Authorities in general 670 

Three main sources of Law : the Ruling Authority, the 

Magistrate, and the Legal Profession .... 674 

The Jurists as makers of Law in earlier times . . . 676 

Changed position of the Jurists under the Empire . . 677 

Differences between the action of Roman and English Jurists 681 

Roman Treatises compared with English Reports . . 685 

Magistrates and Judges : in what sense Law-makers . . 687 

The Praetor at Rome . . . . ■ . . . . 691 

Nature and Working of the Praetor's Edict . . . 693 

The English Chancellor 695 

Praetorian Edicts compared with English Case-Law . . 698 

Further observations on Praetorian methods . . . 703 

Strong and weak points in the English Case-System . . 705 

Direct Legislation at Rome : its Organs .... 708 

The Popular Assembly : its method of legislating . .711 

Merits of the Roman Statutes ...... 713 

Legislation by the Senate : its characteristics . . . 716 

Direct legislation by the Emperor 720 

Vast powers of the Emperor : his Privy Council . . . 724 



CONTENTS xri 

PAGE 

Defects in Imperial legislation 726 

Profusion and inferiority of legislation under the later 

Emperors 728 

Direct legislation in England : its history .... 731 

Advantages of Parliament and Congress for legislation . 732 
Strictures commonly passed on English and American 

Statutes 734 

Difficulties incident to Parliamentary legislation . . 735 

Reflections suggested by the history of English compared 

with that of Roman legislation ..... 739 
Some branches of law better fitted than others to be handled 

by direct legislation 741 

ESSAY XV 

The History of Legal Development at Rome and 

in England 745-781 

Roman and English Law have both been developed in a 

comparatively independent way ..... 745 

Conspicuous epochs of legal change at Rome and in England 747 
Forces and influences chiefly active in determining legal 

changes .......... 750 

Roman Legal History during the republican period . . 751 
Effect on the law of the establishment of the imperial auto- 
cracy 755 

Rise of Christianity : dissolution of the Empire in the West 757 
The decline in legal learning induced Codification . . 758 
Political events and External Influences are the chief sources 

of changes in Roman Law ...... 761 

Causes of legal change operative in England : the periods 

of Henry II and Edward I ..... 762 

The Reformation and the Civil War ..... 765 

The Reform Act of 1832 and the Victorian Epoch . . 767 
The Law of Family and Inheritance at Rome and the Law 

of Land in England ....... 769 

Effects of Territorial Expansion on Roman and on English 

Law .......... 771 

economic influences more generally potent in England : 

political in Rome ........ 773 

Observations on France and Germany .... 776 



xxii CONTENTS 

PAGE 

Private law is the branch least affected by political changes 778 

Legal topics in which further advances may be looked for 779 

ESSAY XVI 

Marriage and Divorce in Roman and in English 

Law 782-859 

Diversity of the Law of Marriage in different countries . 782 
Features generally characteristic of the institution in the 

ancient Mediterranean World ..... 784 

Early Marriage law of the Romans ..... 786 

Subordination of the Wife : the ' Hand Power ' (Manus) . 787 

Transition to a freer system ....... 789 

Later Marriage Law : nature of the personal relation it 

creates .......... 791 

Relation of the Consorts as respects Property . . . 794 
General character of the Roman Conception of Marriage : 

its freedom . . . . . . . . . 798 

Roman doctrine and practice regarding Divorce . . 799 

Influence of Christianity on Imperial Legislation . . 803 

Other Roman rules : prohibited degrees : Concubinatus . 806 
Marriage under the Canon Law . . . . . .811 

The English Law : jurisdiction of the Spiritual Courts . 814 
Relations of the Consorts as respects Property under Eng- 
lish Law . . ... . . . . .818 

Amendment of English Matrimonial Law by courts of 

Equity and by Legislation ...... 821 

Personal Liberty of the Wife now well established . . 823 
English law has wavered between different theories of the 

relation 824 

. 825 

. 827 

. 830 

. 832 



Divorce under the Canon Law 

History of Divorce in England 

Divorce Laws in the United States 

Laxity of Procedure in Divorce Cases 

Statistics of Divorce in the United States : causes for which 

it is granted . 834 

Illustrations from the ' Western Reserve ' counties of Ohio 836 
Divorce in modern European countries .... 839 
Comparison of the phenomena of Divorce in the Roman and 

in the Modern World . . . . . 842 



CONTENTS 



PAGE 



Causes now tending to weaken the permanence of the 

Marriage Tie ........ 846 

Does the growth of Divorce betoken a moral decline ? . 849 

Influence of the Church and of the Law .... 851 

Does the English Divorce Law need amendment ? . . 852 

Changes in Theory and in Sentiment regarding Marriage . 856 

Inaugural Lecture 860 

Valedictory Lecture 887 

Index 909 



I 

THE ROMAN EMPIRE AND THE 
BRITISH EMPIRE IN INDIA 

In several of the Essays contained in these volumes 
comparisons are instituted between Rome and Eng- 
land in points that touch the constitutions and the 
laws of these two great imperial States. This Essay 
is intended to compare them as conquering and ruling 
powers, acquiring and administering dominions outside 
the original dwelling-place of their peoples, and impress- 
ing upon these dominions their own type of civilization. 

This comparison derives a special interest from a 
consideration of the position in which the world finds 
itself at the beginning of the twentieth century. The 
great civilized nations have spread themselves out so 
widely, and that with increasing rapidity during the 
last fifty years, as to have brought under their dominion 
or control nearly all the barbarous or semi-civilized 
races. Europe — that is to say the five or six races 
which we call the European branch of mankind — has 
annexed the rest of the earth, extinguishing some races, 
absorbing others, ruling others as subjects, and spread- 
ing over their native customs and beliefs a layer of 
European ideas which will sink deeper and deeper till 
the old native life dies out. Thus, while the face of the 
earth is being changed by the application of European 
science, so it seems likely that within a measurable time 
European forms of thought and ways of life will come 
to prevail everywhere, except possibly in China, whose 



2 ROMAN AND BRITISH EMPIRES 

vast population may enable her to resist these solvent 
influences for several generations, perhaps for several 
centuries. In this process whose agencies are migration, 
conquest, and commerce, England has led the way and 
has achieved the most. Russia however, as well as 
France and Germany, have annexed vast areas inhabited 
by backward races. Even the United States has, by 
occupying the Hawaiian and the Philippine Islands, 
entered, somewhat to her own surprise, on the same 
path. Thus a new sort of unity is being created among 
mankind. This unity is seen in the bringing of every 
part of the globe into close relations, both commercial 
and political, with every other part. It is seen in the 
establishment of a few ' world languages ' as vehicles 
of communication between many peoples, vehicles which 
carry to them the treasures of literature and science 
which the four or five leading nations have gathered. It 
is seen in the diffusion of a civilization which is every- 
where the same in its material aspects, and is tolerably 
uniform even on its intellectual side, since it teaches men 
to think on similar lines and to apply similar methods 
of scientific inquiry. The process has been going on for 
some centuries. In our own day it advances so swiftly 
that we can almost foresee the time when it will be com- 
plete. It is one of the great events in the history of the 
world. 

Yet it is not altogether a new thing. A similar process 
went on in the ancient world from the time of Alexander 
the Macedonian to that of Alaric the Visigoth. The Greek 
type of civilization, and to some extent the Greek popu- 
lation also, spread out over the regions around the east- 
ern Mediterranean and the Euxine. Presently the con- 
quests of Rome brought all these regions, as well as the 
western countries as far as Caledonia, under one govern- 
ment. This produced a uniform type of civilization 
which was Greek on the side of thought, of literature, 
and of art, Roman on the side of law and institutions. 
Then came Christianity which, in giving to all these 



ROMAN AND BRITISH EMPIRES 3 

countries one religion and one standard of morality, 
created a still deeper sense of unity among them. Thus 
the ancient world, omitting the barbarous North and the 
semi-civilized heathen who dwelt beyond the Euphrates, 
became unified, the backward races having been raised, 
at least in the upper strata of their population, to the 
level of the more advanced. One government, one faith, 
and two languages, were making out of the mass of races 
and kingdoms that had existed before the Macedonian 
conquest, a single people who were at once a Nation and 
a World Nation. 

The process was not quite complete when it was inter- 
rupted by the political dissolution of the Roman do- 
minion, first through the immigrations of the Teutonic 
peoples from the north, then by the terrible strokes dealt 
at the already weakened empire by the Arab conquerors 
from the south-east. The results that had been attained 
were not wholly lost, for Europe clung to the Greco- 
Romano-Christian civilization, though in a lowered form 
and with a diminished sense of intellectual as well as of 
political unity. But that civilization was not able to ex- 
tend itself further, save by slow degrees over the north 
and towards the north-east. Several centuries passed. 
Then, at first faintly from the twelfth century onwards, 
afterwards more swiftly from the middle of the fifteenth 
century, when the intellectual impulse given by the Re- 
naissance began to be followed by the rapid march of 
geographical discovery along the coasts of Africa, in 
America, and in the further east, the process was re- 
sumed. We have watched its later stages with our own 
eyes. It embraces a far vaster field than did the earlier 
one, the field of the whole earth. As we watch it, we are 
naturally led to ask what light the earlier effort of Nature 
to gather men together under one type of civilization 
throws on this later one. As Rome was the principal 
agent in the earlier, so has England been in the later 
effort. England has sent her language, her commerce, 
her laws and institutions forth from herself over an even 



4 ROMAN AND BRITISH EMPIRES 

wider and more populous area than that whose races 
were moulded into new forms by the laws and institu- 
tions of Rome. The conditions are, as we shall see, in 
many respects different. Yet there is in the parallel 
enough to make it instructive for the present, and pos- 
sibly significant for the future. 

The dominions of England beyond the seas are, how- 
ever, not merely too locally remote from one another, 
but also too diverse in their character to be compared 
as one whole with the dominions of Rome, which were 
contiguous in space, and were all governed on the same 
system. The Britannic Empire falls into three terri- 
torial groups, the self-governing colonies, the Crown 
colonies, and the Indian territories ruled by or depen- 
dent on the sovereign of Britain. Of these three groups, 
since they cannot be treated together, being ruled on 
altogether different principles, it is one group only that 
can usefully be selected for comparison with the Roman 
Empire. India contains that one group. She is fitter 
for our purpose than either of the other two groups, 
because the self-governing colonies are not subject ter- 
ritories administered from England, but new Englands 
planted far away beyond the oceans, reproducing, each 
in its own way, the features of the constitution and 
government of the old country, while the Crown colonies 
are so scattered and so widely diverse in the character 
of their inhabitants that they cannot profitably be dealt 
with as one body. Jamaica, Cyprus, Basutoland, Singa- 
pore, and Gibraltar, have little in common except their 
dependence on Downing Street. Neither set of colonies 
is sufficiently like the dominion of Rome to make it pos- 
sible for us to draw parallels between them and it. 
India, however, is a single subject territory, and India is 
compact, governed on the same principles and by the 
same methods over an area not indeed as wide as that of 
the Roman Empire but more populous than the Roman 
Empire was in its palmiest days. British India (includ- 
ing Burma) covers about 965,000 square miles, and the 



ROMAN AND BRITISH EMPIRES 5 

protected States (including Kashmir, but not Nepal and 
Bhotan), about 600,000 square miles, making a total 
of (roughly) 1,565,000 square miles, with a population 
of nearly 290 millions. The area of the territories in- 
cluded in the Roman Empire at its greatest extent (when 
Dacia and the southern part of what is now Scotland be- 
longed to it) may have been nearly 2,500,000 square 
miles. The population of that area is now, upon a very 
rough estimate, about 210 millions. What it was in 
ancient times we have no data even for guessing, but it 
must evidently have been much smaller, possibly not 
100 millions, for although large regions, such as parts 
of Asia Minor and Tunisia, now almost deserted, were 
then filled by a dense industrial population, the increase 
in the inhabitants of France and England, for instance, 
has far more than compensated this decline. 

The Spanish Empire in America as it stood in the 
sixteenth and seventeenth centuries was still vaster in 
area, as is the Russian Empire in Asia to-day. But the 
population of Spanish America was extremely small in 
comparison with that of the Roman Empire or that of 
India, and its organization much looser and less elabo- 
rate 1 . Both the Spanish and the Russian Empires, how- 
ever, furnish illustrations which we shall have occasion 
presently to note. 

Of all the dominions which the ancient world saw, it 
is only that of Rome that can well be compared with 
any modern civilized State. The monarchies of the 
Assyrian and Egyptian conquerors, like those of the 
Seleucid kings and of the Sassanid dynasty in Persia, 
stood on a far lower level of culture and administrative 
efficiency than did the Roman. Neither was there in the 
Middle Ages any far stretching dominion fit to be 
matched with that of Rome, for the great Ommiad 
Khalifate and the Mogul monarchy in India were both 
of them mere aggregates of territories, not really unified 

1 The total area of the Russian Empire exceeds 8,000,000 square miles, and the 
population is about 130,000,000. 



6 ROMAN AND BRITISH EMPIRES 

by any administrative system, while the authority or 
suzerainty of the Chinese sovereigns over Turkistan, 
Mongolia, and Tibet presents even fewer points of resem- 
blance. So when we wish to examine the methods and 
the results of British rule in India by the light of any 
other dominion exercised under conditions even re- 
motely similar, it is to the Roman Empire of the cen- 
turies between Augustus and Honorius that we must go. 

When one speaks of conditions even remotely similar 
one must frankly admit the existence of an obvious and 
salient point of contrast. Rome stood in the middle of 
her dominions, Britain stands, by the Red Sea route, 
six thousand miles from the nearest part of hers. She 
can reach them only by water, and she conquered them 
by troops which had been sent around the Cape over 
some thirteen thousand miles of ocean. Here there is 
indeed an unlikeness of the utmost significance. Yet, 
without minimizing the importance of the contrast, we 
must remember that Britain can communicate more 
quickly with the most distant part of her territories than 
Rome could with hers. It takes only twenty-two days 
to reach any part of British India (except Kashmir and 
Upper Assam) from London. But it took a nimble, or 
as Herodotus says, a ' well girt traveller,' perhaps forty 
days from Rome to reach Derr on the Nile, the last for- 
tress in Nubia where Roman masonry can be seen, or 
Gori, at the foot of the Caucasus, also a Roman strong- 
hold, or Old Kilpatrick (near Dumbarton) where the 
rampart of Antoninus touches the Clyde ; not to add that 
the sea part of these journeys might be much longer if 
the winds were adverse. News could be carried not 
much faster than an official could travel, whereas Britain 
is, by the electric telegraph, in hourly communication 
with every part of India : and the difference in speed 
between the movement of an army and that of a traveller 
was, of course, greater in ancient times than it is now. 

Thus, for the purposes both of war and of administra- 
tion, England is better placed than Rome was as respects 



ROMAN AND BRITISH EMPIRES 7 

those outlying parts of the Roman Empire which were 
most exposed to attack. Dangers are more quickly 
known at head quarters; troops can reach the threa- 
tened frontier in a shorter time ; errors in policy can be 
more adequately corrected, because explanations can be" 
asked, and blundering officials can be more promptly 
dismissed. Nevertheless the remoteness of India has 
had results of the highest moment in making her rela- 
tion to England far less close than was that of Rome 
to the provinces. 

This point will be considered presently. Meantime 
our comparison may begin with the points in which the 
two Empires resemble and illustrate one another. The 
first of these turns upon the circumstances of their re- 
spective origins. 

Empire is retained, says a famous maxim, by the same 
arts whereby it was won. Some Empires have been 
won easily. Spain acquired hers through the pertinacity 
and daring of a Genoese sailor. She had comparatively 
little fighting to do, for the only opponents she encoun- 
tered, who added to valour some slight tincture of civili- 
zation, were the Mexicans. 

Russia has met with practically no resistance in occu- 
pying her vast territories in Northern Asia ; though she 
had some sharp tussles with the nomad Turkmans, and 
tedious conflicts both with Shamyl and with the Circas- 
sians in the Caucasus. But both Rome and England 
had to fight long and fight hard for what they won. The 
progress of Roman and British expansion illustrates the 
remark of Oliver Cromwell that no one goes so far as 
he who does not know whither he is going. Neither 
power set out with a purpose of conquest, such as 
Alexander the Great, and perhaps Cyrus, had planned 
and carried out before them. Just as Polybius, writing 
just after the destruction of Carthage in b. c. 146, already 
perceived that Rome was, by the strength of her govern- 
ment and the character of her people, destined to be 
the dominant power of the civilized world, so it was 



8 ROMAN AND BRITISH EMPIRES 

prophesied immediately after the first victories of 
Clive that the English would come to be the masters 
of all India. Each nation was drawn on by finding 
that one conquest led almost inevitably to another be- 
cause restless border tribes had to be subdued, be- 
cause formidable neighbours seemed to endanger 
the safety of subjugated but often discontented pro- 
vinces, because allies inferior in strength passed gradu- 
ally into the position first of dependants and then of 
subjects. 

The Romans however, though they did not start out 
with the notion of conquering even Italy, much less the 
Mediterranean world, came to enjoy fighting for its own 
sake, and were content with slight pretexts for it. For 
several centuries they were always more or less at war 
somewhere. The English went to India as traders, 
with no intention of fighting anybody, and were led 
into the acquisition of territory partly in order to recoup 
themselves for the expensive efforts they had made to 
support their first allies, partly that they might get 
revenue for the East India Company's shareholders, 
partly in order to counterwork the schemes of the 
French, who were at once their enemies in Europe and 
their rivals in the East. One may find a not too fanciful 
analogy to the policy of the English in the days of Clive, 
when they were drawn further and further into Indian 
conflicts by their efforts to check the enterprises of 
Dupleix and Lally, in the policy of the Romans when 
they entered Sicily to prevent Carthage from establish- 
ing her control over it. In both cases an effort which 
seemed self-protective led to a long series of wars and 
annexations. 

Rome did not march so swiftly from conquest to con- 
quest as did England. Not to speak of the two cen- 
turies during which she was making herself supreme in 
Italy, she began to conquer outside its limits from the 
opening of the First Punic War in b. c. 264, and did 
not acquire Egypt till b. c. 30, and South Britain till 



ROMAN AND BRITISH EMPIRES 9 

a. d. 43-85 1 . Her Eastern conquests were all the easier 
because Alexander the Great's victories, and the wars 
waged by his successors, had broken up and denation- 
alized the East, much as the Mogul conquerors after- 
wards paved the way for the English in India. England's 
first territorial gains were won at Plassy in a. d. 1757 2 : 
her latest acquisition was the occupation of Mandalay in 
1885. Her work was done in a century and a quarter, 
while that of Rome took fully three centuries. But Eng- 
land had two great advantages. Her antagonists were 
immeasurably inferior to her in arms as well as in dis- 
cipline. As early as a. d. 1672 the great Leibnitz had in 
a letter to Lewis XIV pointed out the weakness of the 
Mogul Empire ; and about the same time Bernier, a 
French physician resident at the Court of Aurungzeb, 
declared that 20,000 French troops under Conde or 
Turenne could conquer all India 3 . A small European 
force, and even a small native force drilled and led by 
Europeans, was as capable of routing huge Asiatic ar- 
mies as the army of Alexander had proved capable of 
overthrowing the immensely more numerous hosts of 
Darius Codomannus. Moreover, the moment when the 
English appeared on the scene was opportune. The 
splendid Empire of Akbar was crumbling to pieces. The 
Mahratta confederacy had attained great military power, 
but at the battle of Paniput, in 1761, it received from the 
Afghans under Ahmed Shah Durani a terrific blow which 
for the time arrested its conquests. Furthermore, India, 
as a whole, was divided into numerous principalities, 
the feeblest of which lay on the coasts of the Bay of Ben- 
gal. These principalities were frequently at war with one 
another, and glad to obtain European aid in their strife. 

1 Dacia was taken by Trajan in a. d. 107, and lost in a. d. 251. Mesopotamia 
and Arabia Petraea were annexed by Trajan about the same time, but the former 
was renounced so soon afterwards that ts conquest can hardly be considered a 
part of the regular process of expansion. 

2 Territorial authority may be said to date from the grant of the Diwani in 
1765- 

3 See the admirably clear and thoughtful book of Sir A. C. Lyall, Rise of British 
Dominion in India, pp. 52 and 126. 



10 ROMAN AND BRITISH EMPIRES 

And England had a third advantage in the fact that she 
encountered the weakest of her antagonists first. Had 
she, in those early days when her forces were slender, 
been opposed by the valour of Marathas or Sikhs, in- 
stead of by the feeble Bengalis and Madrassis, her ambi- 
tions might have been nipped in the bud. When she 
found herself confronted by these formidable foes she 
had already gained experience and had formed a strong 
native army. But when the Romans strove against the 
Achaean League and Macedon they had to fight troops 
all but equal to themselves. When Carthage was their 
antagonist, they found in Hamilcar a commander equal, 
in Hannibal a commander superior to any one they could 
send against him. These earlier struggles so trained 
Rome to victory that her later conquests were made 
more easily. The triumphs of the century before and the 
century after Julius Caesar were won either over Asi- 
atics, who had discipline but seldom valour, or over Gauls, 
Iberians, Germans, and Caledonians, who had valour 
but not discipline. Occasional reverses were due to 
the imprudence of a general, or to an extreme disparity 
of forces ; for, like the English, the Romans did not hesi- 
tate to meet greatly superior numbers. The defeat of 
Crassus by the Parthians and the catastrophe which 
befel Varus in the forests of Paderborn find a parallel 
in the disastrous retreat of the English army from Cabul 
in 1843. Except on such rare occasions the supremacy 
of Roman arms was never seriously challenged, nor was 
any great calamity suffered till the barbarian irruption 
into Italy in the reign of Marcus Aurelius. A still graver 
omen for the future was the overthrow of Valerian by 
the Persians in a. d. 260. The Persians were inferior 
in the 'arts of civilization and probably in discipline: 
but the composition of the Roman armies was no longer 
what it had been three centuries earlier, for the peasantry 
of Italy, which had formed the kernel of their strength, 
were no longer available. As the provincial subjects be- 
came less and less warlike, men from beyond the frontier 



ROMAN AND BRITISH EMPIRES 11 

were enrolled, latterly in bodies under their native chiefs 
— Germans, or Arabs, or, in still later days, Huns — just 
as the native army in British India, which has now be- 
come far more peaceful than it was a century ago, is re- 
cruited by Pathans and Ghurkas from the hills outside 
British territory as well as by the most warlike among 
the Indian subjects of the Crown. The danger of the 
practice is obvious. Rome was driven to it for want 
of Roman fighting-men 1 . England guards against its 
risks by having a considerable force of British troops 
alongside her native army. 

The fact that their dominions were acquired by force 
of arms exerted an enduring effect upon the Roman 
Empire and continues to exert it upon the British in 
imprinting upon their rule in India a permanently mili- 
tary character. The Roman administration began with 
this character, and never lost it, at least in the frontier 
provinces. The governors were pro-consuls or pro- 
praetors, or other officials, entrusted with the exercise 
of an authority in its origin military rather than civil. 
A governor's first duty was to command the troops 
stationed in the province. The camps grew into towns, 
and that which had been a group of canabae or market 
stalls, a sort of bazaar for the service of the camp, some- 
times became a municipality. One of the most efficient 
means of unifying the Empire was found in the bringing 
of soldiers born in one part of it to be quartered for many 
years together in another. Military distinction was open 
to every subject, and military distinction might lead to 
the imperial throne. So the English in India are pri- 
marily soldiers. True it is that they went to India three 
centuries ago as traders, that it was out of a trading com- 
pany that their power arose, and that this trading com- 
pany did not disappear till 1858. The covenanted civil 
service, to which Clive for instance belonged, began as a 
body of commercial clerks. Nothing sounds more paci- 

1 And indeed the employment of these barbarians to resist the outer barbarians 
probably prolonged the life of the Empire. 



12 ROMAN AND BRITISH EMPIRES 

fie. But the men of the sword very soon began to eclipse 
the men of the quill and account book. Being in the ma- 
jority, they do so still, although foi forty years there 
have been none but petty frontier wars. Society is not in 
India, as it is in England, an ordinary civil society occu- 
pied with the works and arts of peace, with an extremely 
small military element. It is military society, military 
first and foremost, though with an infusion of civilian 
officials, and in some towns with a small infusion of law- 
yers and merchants, as well as a still smaller infusion of 
missionaries. Military questions occupy every one's 
thoughts and talk. A great deal of administrative or 
diplomatic work is done, and often extremely well done, 
by officers in civil employment. Many of the railways 
are primarily strategic lines, as were the Roman roads. 
The railway stations are often placed, for military rea- 
sons, at a distance from the towns they serve : and the 
cantonments where the Europeans, civilians as well as 
soldiers, reside, usually built some way off from the native 
cities, have themselves, as happened in the Roman Em- 
pire, grown into regular towns. The traveller from 
peaceful England feels himself, except perhaps in Bom- 
bay, surrounded by an atmosphere of gunpowder all the 
time he stays in India. 

Before we pass from the military aspects of the com- 
parison let it be noted that both Empires have been 
favoured in their extension and their maintenance by 
the frontiers which Nature had provided. The Romans, 
when once they had conquered Numidia, Spain, and 
Gaul, had the ocean and nothing but the ocean (save 
for the insignificant exception of barbarous Mauretania) 
to the west and north-west of them, an awesome and 
untravelled ocean, from whose unknown further shore 
no enemy could appear. To the south they were de- 
fended by the equally impassable barrier of a torrid 
and waterless desert, stretching from the Nile to the 
Atlantic. It was only on the north and east that there 
were frontiers to be defended; and these two sides 



ROMAN AND BRITISH EMPIRES 13 

remained the quarters of danger, because no natural 
barrier, arresting the progress of armies or constituting 
a defensible frontier, could be found without pushing 
all the way to, the Baltic in one direction or to the ranges 
of Southern Kurdistan, perhaps even to the deserts of 
Eastern Persia in the other. The north and the east 
ultimately destroyed Rome. The north sent in those 
Teutonic tribes which occupied the western provinces 
and at last Italy herself, and those Slavonic tribes which 
settled between the Danube, the Aegean, and the 
Adriatic, and permeated the older population of the 
Hellenic lands. Perhaps the Emperors would have done 
better for the Empire (whatever might have been the 
ultimate loss to mankind) if, instead of allowing them- 
selves to be disheartened by the defeat of Varus, they had 
pushed their conquests all the way to the Baltic and the 
Vistula, and turned the peoples of North and Middle 
Germany into provincial Romans. The undertaking 
would not have been beyond the resources of the Empire 
in its vigorous prime, and would have been remunera- 
tive, if not in money, at any rate in the way of providing 
a supply of fighting-men for the army. So too the Em- 
perors might possibly have saved much suffering to their 
Romanized subjects in South Britain had they followed 
up the expedition of Agricola and subdued the peoples 
of Caledonia and Ierne, who afterwards became disagree- 
able as Picts and Scots. The east was the home of the 
Parthians, of the Persians, so formidable to the By- 
zantine Emperors in the days of Kobad and Chosroes 
Anushirwan, and of the tribes which in the seventh and 
eighth centuries, fired by the enthusiasm of a new faith 
and by the prospect of booty, overthrew the Roman 
armies and turned Egypt, Syria, Africa, Spain, and ulti- 
mately the greater part of Asia Minor into Muhamadan 
kingdoms. Had Rome been menaced on the south and 
west as she was generally menaced on the east and some- 
times on the north, her Empire could hardly have lived 
so long. Had she possessed a natural barrier on the 



14 ROMAN AND BRITISH EMPIRES 

east like that which the Sahara provided on the south 
she might have found it easy to resist, and not so very 
hard even to subjugate, the fighting races of the north. 

Far more fortunate has been the position of the 
English in India. No other of the great countries of the 
world is protected by such a stupendous line of natural 
entrenchments as India possesses in the chain of the 
Himalayas from Attock and Peshawur in the west to 
the point where, in the far east, the Tsanpo emerges 
from Tibet to become in Upper Assam the Brahmaputra. 
Not only is this mountain mass the loftiest and most 
impassable to be found anywhere on our earth; it is 
backed by a wide stretch of high and barren country, 
so thinly peopled as to be incapable of constituting 
a menace to those who live in the plains south of the 
Himalayas. And in point of fact the relations, com- 
mercial as well as political, of India with Tibet, and with 
the Chinese who are suzerains of Tibet, have been, at 
least in historical times, extremely scanty. On the east, 
India is divided from the Indo-Chinese peoples, Talains, 
Burmese and Shans, by a belt of almost impenetrable 
hill and forest country : nor have these peoples ever 
been formidable neighbours. It is only at its north- 
western angle, between Peshawur and Quetta (for south 
of Quetta as far as the Arabian Sea there are deserts 
behind the mountains and the Indus) that India is vulner- 
able. The rest of the country is protected by a wide 
ocean. Accordingly the masters of India have had only 
two sets of foes to fear ; European maritime powers who 
may arrive by sea after a voyage which, until our own 
time, was a voyage of three or four months, and land 
powers who, coming from the side of Turkistan or Per- 
sia, may find their way, as did Alexander the Great and 
Nadir Shah, through difficult passes into the plains of 
the Punjab and Sindh. This singular natural isolation 
of India, as it facilitated the English conquest by prevent- 
ing the native princes from forming alliances with or 
obtaining help from powers beyond the mountains or the 



ROHAN AND BRITISH EMPIRES 15 

sea, so has it also enabled the English to maintain their 
hold with an army extraordinarily small in proportion 
to the population of the country. The total strength of 
the Roman military establishment in the days of Trajan, 
was for an area of some two and a half millions of square 
miles and population of possibly one hundred millions, 
between 280,000 and 320,000 men. Probably four-fifths 
of this force was stationed on the Rhine, the Danube, and 
the Euphrates. There were so few in most of the inner 
provinces that, as some one said, the nations wondered 
where were the troops that kept them in subjection. 

The peace or ' established ' strength of the British 
army in India is nearly 230,000 men, of whom about 
156,000 are natives and 74,000 Englishmen. To these 
there may be added the so-called ' active reserve ' of 
natives who have served with the colours, about 17,000 
men, and about 30,000 European volunteers. Besides 
these there are of course the troops of the native princes, 
estimated at about 350,000 men, many of them, however, 
far from effective. But as these troops, though a source 
of strength while their masters are loyal, might under 
altered circumstances be conceivably a source of danger, 
they can hardly be reckoned as part of the total force 
disposable by the British Government. Recently, how- 
ever, about 20,000 of them have been organized as spe- 
cial contingents of the British army, inspected and ad- 
vised by British officers, and fit to take their place with 
regiments of the line. 

It would obviously be impossible to defend such widely 
extended dominions by a force of only 230,000 or 250,000 
men, but for the remoteness of all possibly danger- 
ous assailants. The only formidable land neighbour is 
Russia, the nearest point of whose territories in the 
Pamirs is a good long way from the present British out- 
posts, with a very difficult country between. The next 
nearest is France on the Mekong River, some 200 miles 
from British Burma, though a shorter distance from 
Native States under British influence. As for sea powers, 



16 ROMAN AND BRITISH EMPIRES 

not only is Europe a long way off, but the navy of Britain 
holds the sea. It was by her command of the sea that 
Britain won India. Were she to cease to hold it, her 
position there would be insecure indeed. 

In another respect also the sharp severance of India 
from all the surrounding countries may be deemed to 
have proved a benefit to the English. It has relieved 
them largely if not altogether from the temptation to 
go on perpetually extending their borders by annexing 
contiguous territory. When they had reached the natu- 
ral boundaries of the Himalayas and the ranges of 
Afghanistan, they stopped. Beyond these lie rugged 
and unprofitable highlands, and still more unprofitable 
wildernesses. In two regions only was an advance pos- 
sible : and in those two regions they have yielded to 
temptation. They have crossed the southern part of 
the Soliman mountains into Baluchistan in search for a 
more ' scientific ' frontier, halting for the present on the 
Amram range, north-west of Quetta, where from the 
Khojak heights the eye, ranging over a dark-brown arid 
plain, descries seventy miles away the rocks that hang 
over Kandahar. They moved on from Arakhan and 
Tenasserim into Lower Burma, whence in 1885 they con- 
quered Upper Burma and proclaimed their suzerainty 
over some of the Shan principalities lying further to the 
east. But for the presence of France in these regions, 
which makes them desire to keep Siam in existence as 
a so-called ' Buffer State,' manifest destiny might pro- 
bably lead them ultimately eastward across the Menam 
and Mekong to Annam and Cochin China. 

The Romans too sought for a scientific frontier, and 
hesitated often as to the line they should select, some- 
times pushing boldly eastward beyond the Rhine and 
the Euphrates, sometimes receding to those rivers. Not 
till the time of Hadrian did they create a regular system 
of frontier defence, strengthened at many points by forti- 
fications, among which the forts that lie along the 
Roman Wall from the Tyne to the Solway are perhaps 



ROMAN AND BRITISH EMPIRES 17 

the best preserved. So the English wavered for a time 
between the line of the Indus and that of the Soliman 
range ; so in the wild mountain region beyond Kashmir 
they have, within the last few years, alternately occupied 
and retired from the remote outpost of Chitral. It has 
been their good fortune to have been obliged to fortify 
a comparatively small number of points, and all of these 
are on the north-west frontier. 

There have been those who would urge them to occupy 
Afghanistan and entrench themselves therein to resist a 
possible Russian invasion. But for the present wiser 
counsels have prevailed. Afghanistan is a more effective 
barrier in the hands of its own fierce tribes than it would 
be as a part of British territory. A parallel may be 
drawn between the part it has played of late years and 
that which Armenia played in the ancient world from the 
days of Augustus to those of Heraclius. Both countries 
had been the seats of short-lived Empires, Armenia in 
the days of Tigranes, Afghanistan in those of Ahmed 
Shah. Both are wild and rugged regions, the dwelling- 
places of warlike races. Christian Armenia was hostile 
from religious sentiment to the enemies whom Rome had 
to fear, the Persian Fire-worshippers. Musulman Af- 
ghanistan dreads the power of Christian Russia. But 
the loyalty or friendship of the Armenian princes was not 
always proof against the threats of the formidable Sas- 
sanids, and the action of the Afghans is an element of 
uncertainty and anxiety to the British rulers of India. 

To make forces so small as those on which Rome re- 
lied and those which now defend British India adequate 
for the work they have to do, good means of communi- 
cation are indispensable. It was one of the first tasks 
of the Romans to establish such means. They were the 
great — indeed one may say, the only — road builders of 
antiquity. They began this policy before they had com- 
pleted the conquest of Italy ; and it was one of the devices 
which assured their supremacy throughout the penin- 
sula. They followed it out in Gaul, Spain, Africa, Britain, 



18 ROMAN AND BRITISH EMPIRES 

and the East, doing their work so thoroughly that in 
Britain some of the roads continued to be the chief ave- 
nues of travel down till the eighteenth century. So the 
English have been in India a great engineering people, 
constructing lines of communication, first roads and 
afterwards railways, on a scale of expenditure unknown 
to earlier ages. The potentates of elder days, Hindu ra- 
jahs, and subsequently Pathans and Moguls, with other 
less famous Musulman dynasties, have left their memo- 
rials in temples and mosques, in palaces and tombs. The 
English are commemorating their sway byrailway works, 
by tunnels and cuttings, by embankments and bridges. If 
India were to relapse into barbarism the bridges, being 
mostly of iron, would after a while perish, and the em- 
bankments would in time be swept away by torrential 
rains, but the rock-cuttings and the tunnels would re- 
main, as the indestructible paving-stones of the Roman 
roads, and majestic bridges, like the Pont du Gard in 
Languedoc, remain to witness to the skill and thorough- 
ness with which a great race did its work. 

The opening up of India by railroads suggests not a few 
interesting questions which, however, I can do no more 
than indicate here. Railroad construction has imposed 
upon the Indian exchequer a strain all the heavier because 
some lines, especially those on the north-west frontier, 
having been undertaken from strategic rather than com- 
mercial motives, will yield no revenue at all proportion- 
ate to their cost. It has been suggested that although 
railroads were meant to benefit the peasantry, they may 
possibly have increased the risk of famine, since they in- 
duce the producer to export the grain which was for- 
merly locally stored up in good years to meet the scarcity 
of bad years. The comparative quickness with which 
food can be carried by rail into a famine area does not — 
so it is argued — compensate for the loss of these domes- 
tic reserves. Railways, bringing the numerous races 
that inhabit India into a closer touch with one another 
than was possible before, are breaking down, slowly but 



ROMAN AND BRITISH EMPIRES 19 

surely, the demarcations of caste, and are tending to- 
wards an assimilation of the jarring elements, racial and 
linguistic, as well as religious, which have divided India 
into a number of distinct, and in many cases hostile, 
groups. Centuries may elapse before this assimilation 
can become a source of political danger to the rulers of 
the country : yet we discern the beginnings of the pro- 
cess now, especially in the more educated class. The 
Roman roads, being highways of commerce as well as 
of war, contributed powerfully to draw together the 
peoples whom Rome ruled into one imperial nationality. 
But this was a process which, as we shall presently note, 
was for Rome an unmixed gain, since it strengthened 
the cohesion of an Empire whose inhabitants had every 
motive for loyalty to the imperial Government, if not 
always to the particular sovereign. The best efforts 
of Britain may not succeed in obtaining a similar attach- 
ment from her Indian subjects, and their union into a 
body animated by one national sentiment might become 
an element of danger against which she has never yet 
been required to take precautions. 

The excellence of the highways of communication 
provided by the wise energy of the Romans and of the 
English has contributed not only to the easier defence 
of the frontiers of both Empires, but also to the main- 
tenance of a wonderfully high standard of internal 
peace and order. Let any one think of the general state 
of the ancient world before the conquests of Rome, and 
let him then think of the condition not merely of India 
after the death of the Emperor Aurungzeb, but of the 
chief European countries as they stood in the seven- 
teenth century, if he wishes to appreciate what Rome did 
for her subjects, or what England has done in India. In 
some parts of Europe private war still went on two hun- 
dred and fifty years ago. Almost everywhere robber 
bands made travelling dangerous and levied tribute upon 
the peasantry. Even in the eighteenth century, and 
even within our own islands, Rob Roy raided the farm- 



20 ROMAN AND BRITISH EMPIRES 

ers of Lennox, and landlords in Connaught fought 
pitched battles with one another at the head of their re- 
tainers. Even a century ago the coasts of the Mediter- 
ranean were ravaged by Barbary pirates, and brigand- 
age reigned unchecked through large districts of Italy. 
But in the best days of the Roman Empire piracy 
was unknown; the peasantry were exempt from all ex- 
actions except those of the tax-gatherer; and the great 
roads were practically safe for travellers. Southern and 
western Europe, taken as a whole, would seem to have 
enjoyed better order under Hadrian and the Antonines 
than was enjoyed again until nearly our own times. This 
was the more remarkable because the existence of sla- 
very must have let loose upon society, in the form of run- 
away slaves, a good many dangerous characters. More- 
over, there remained some mountainous regions where 
the tribes had been left practically to themselves under 
their own rude customs. These enclaves of barbarism 
within civilized territory, such as was Albania, in the cen- 
tral mountain knot of which no traces of Roman building 
have been found, and the Isaurian country in Asia Minor, 
and possibly the Cantabrian land on the borders of south- 
western Gaul and northern Spain, where the Basque 
tongue still survives, do not appear to have seriously in- 
terfered with the peace and well-being of the settled 
population which dwelt around them, probably because 
the mountaineers knew that it was only by good be- 
haviour that they could obtain permission to enjoy the 
measure of independence that had been left to them. 
The parts of provincial Africa which lay near the desert 
were less orderly, because it was not easy to get behind 
the wild tribes who had the Sahara at their back. 

The internal peace of the Roman Empire was, how- 
ever, less perfect than that which has been established 
within the last sixty years in India. Nothing surprises 
the visitor from Europe so much as the absolute confi- 
dence with which he finds himself travelling unprotected 
across this vast country, through mountains and jungles, 



ROMAN AND BRITISH EMPIRES 21 

among half savage tribes whose languages he does not 
know, and that without seeing, save at rare intervals, any 
sign of European administration. Nor is this confined 
to British India. It is almost the same in Native States. 
Even along the lofty forest and mountain frontier that 
separates the native (protected) principality of Sikkim 
from Nepal — the only really independent Indian State — 
an Englishman may journey unarmed and alone, except 
for a couple of native attendants, for a week or more. 
When he asks his friends at Darjiling, before he starts, 
whether he ought to take a revolver with him, they smile 
at the question. There is not so complete a security 
for native travellers, especially in Native States, for here 
and there bands of brigands called Dacoits infest the 
tracks, and rob, sometimes the wayfarer, sometimes the 
peasant, escaping into the recesses of the jungle when 
the police are after them. But dacoity, though it occa- 
sionally breaks out afresh in a few districts, has become 
much less frequent than formerly. The practice of 
Thuggi which seventy years ago still caused many mur- 
ders, has been extirpated by the unceasing energy of 
British officers. Crimes of violence show a percentage 
to the population which appears small when one con- 
siders how many wild tribes remain. The native of 
course suffers from violence more frequently than does 
the European, whose prestige of race, backed by the 
belief that punishment will surely follow on any injury 
done to him, keeps him safe in the wildest districts 1 . 

I have referred to the enclaves within the area of the 
Roman Empire where rude peoples were allowed to live 
after their own fashion so long as they did not disturb 
the peace of their more civilized neighbours. One finds 
the Indian parallel to these districts, not so much in the 
Native States, for these are often as advanced in the 

1 An incident like the murder in 1889 of the British Resident at Manipur, a small 
Protected State in the hill country between Assam and Burma, is so rare and ex- 
cites so much surprise and horror as to be the best proof of the general tranquil- 
lity. In that case there had been some provocation, though not on the part of the 
Resident himself, an excellent man of conciliatory temper. 



22 ROMAN AND BRITISH EMPIRES 

arts of life, and, in a very few instances, almost as well 
administered, as British territory, but rather in the hill 
tribes, which in parts of central, of north-western, and 
of southern India, have retained their savage or semi- 
savage customs, under their own chiefs, within the pro- 
vinces directly subject to the Crown. These tribes, as 
did the Albanians and Basques, cleave to their primitive 
languages, and cleave also to their primitive forms of 
ghost-worship or nature-worship, though Hinduism is 
beginning to lay upon them its tenacious grasp. Of 
one another's lives and property they are not very care- 
ful. But they are awed by the European and leave him 
unmolested. 

The success of the British, like that of the Roman 
administration in securing peace and good order, has 
been due, not merely to a sense of the interest which a 
government has in maintaining conditions which, be- 
cause favourable to industry are favourable also to re- 
venue, but also to the high ideal of the duties of a ruler 
which both nations have set before themselves. Earlier 
Empires, like those of the Persian Achaemenids or of 
the successors of Alexander, had been content to tax 
their subjects and raise armies from them. No monarch, 
except perhaps some of the Ptolemies in Egypt, seems 
to have set himself to establish a system from which his 
subjects would benefit. Rome, with larger and higher 
views, gave to those whom she conquered some compen- 
sations in better administration for the national inde- 
pendence she extinguished. Her ideals rose as she ac- 
quired experience, and as she came to feel the magni- 
ficence of her position. Even under the Republic at- 
tempts were made to check abuses of power on the part 
of provincial governors. The proceedings against Ver- 
res, which we know so well because Cicero's speeches 
against that miscreant have been preserved, are an in- 
stance of steps taken in the interests of a province whose 
discontent was so little likely to harm Rome that no 
urgent political necessity prescribed them. Those pro- 



ROMAN AND BRITISH EMPIRES 23 

ceedings showed how defective was the machinery for 
controlling or punishing a provincial governor ; and it is 
clear enough that a great deal of extortion and misfea- 
sance went on under proconsuls and propraetors in the 
later days of the Republic, to the enrichment, not only of 
those functionaries, but of the hungry swarm who fol- 
lowed them, including men who, like the poet Catullus, 
were made for better things 1 . With the establishment 
of a monarchy administration improved. The Emperor 
had a more definite responsibility for securing the wel- 
fare and contentment of the provinces than had been felt 
by the Senate or the jurors of the Republic, swayed by 
party interest or passion, not to speak of more sordid 
motives. He was, moreover, able to give effect to his 
wishes more promptly and more effectively. He could 
try an incriminated official in the way he thought best, 
and mete out appropriate punishment. It may indeed be 
said that the best proof of the incompetence of the Re- 
publican system for the task of governing the world, and 
of the need for the concentration of powers in a single 
hand, is to be found in the scandals of provincial adminis- 
tration, scandals which, so far as we can judge, could not 
have been remedied without a complete change either in 
the tone and temper of the ruling class at Rome, or in the 
ancient constitution itself. 

On this point the parallel with the English in India is 
interesting, dissimilar as the circumstances were. The 
English administration began with extortions and cor- 
ruptions. Officials were often rapacious, sometimes 
unjust, in their dealings with the native princes. But 
the statesmen and the public opinion of England, even 
in the latter half of the eighteenth century, had higher 
standards than those of Rome in the days of Sulla and 
Cicero, while the machinery which the House of Com- 
mons provided for dealing with powerful offenders was 

1 Poems x and xxviii. It is some comfort to know that Catullus obtained in 
Bithynia only themes for some of his most charming verses (see poems iv and 
xlvi). Gains would probably have been ill-gotten. 



34 ROMAN AND BRITISH EMPIRES 

more effective than the Roman method of judicial pro- 
ceedings before tribunals which could be, and frequently 
were, bribed. The first outbreak of greed and corrup- 
tion in Bengal was dealt with by the strong hand of 
Clive in 1765. It made so great an impression at home 
as to give rise to a provision in a statute of 1773, making 
offences against the provisions of that Act or against the 
natives of India, punishable by the Court of King's Bench 
in England. By Pitt's Act of 1784, a Special Court, con- 
sisting of three judges, four peers, and six members of 
the House of Commons, was created for the trial in Eng- 
land of offences committed in India. This singular tribu- 
nal, which has been compared with the quaestio perpetua 
(de pecuniis repetundis) of Senators created by a Roman 
statute of b. c. 149 to try offences committed by Roman 
officials against provincials, has never acted, or even been 
summoned 1 . Soon after it came the famous trial which 
is more familiar to Englishmen than any other event in 
the earlier relations of England and India. The impeach- 
ment of Warren Hastings has often been compared with 
the trial of Verres, though Hastings was not only a far 
more capable, but a far less culpable man. Hastings, 
like Verres, was not punished. But the proceedings 
against him so fixed the attention of the nation upon the 
administration of India as to secure for wholesome 
principles of conduct a recognition which was never 
thereafter forgotten. The Act of 1784 in establishing 
a Board of Control responsible to Parliament found a 
means both for supervising the behaviour of officials and 
for taking the large political questions which arose in 
India out of the hands of the East India Company. This 
Board continued till India was placed under the direct 
sway of the British Crown in 1858. At the same time 
the appointment of Governors-General who were mostly 
men of wealth, and always men of rank and position at 
home, provided a safeguard against such misconduct as 

1 See Sir C. P. Ilbert's Government of India, p. 68. The provision creating this 
Court has never been repealed. 



ROMAN AND BRITISH EMPIRES 25 

the proconsuls under the Roman Republic had been 
prone to commit. These latter had little to fear from 
prosecution when their term of office was over, and the 
opinion of their class was not shocked by offences which 
would have fatally discredited an English nobleman. 
The standard by which English public opinion judges 
the behaviour of Indian or Colonial officials has, on the 
whole, risen during the nineteenth century ; and the idea 
that the government of subject-races is to be regarded 
as a trust to be discharged with a sense of responsibility 
to God and to humanity at large has become generally 
accepted. Probably the action of the Emperors, or at 
least of such men as Trajan and his three successors, 
raised the standard of opinion in the Roman Empire 
also. It was, however, not so much to that opinion as to 
their sovereign master that Roman officials were respon- 
sible. The general principles of policy which guided the 
Emperors were sound, but how far they were applied to 
check corruption or oppression in each particular case 
is a matter on which we are imperfectly informed. Under 
an indolent or vicious Emperor, a governor who had 
influence at Court, or who remitted the full tribute punc- 
tually, may probably have sinned with impunity. 

The government of India by the English resembles 
that of her provinces by Rome in being thoroughly des- 
potic. In both cases, whatever may have been done 
for the people, nothing was or is done by the people. 
There was under Rome, and there is in British India, no 
room for popular initiative, or for popular interference 
with the acts of the rulers, from the Viceroy down to 
a district official. For wrongs cognizable by the courts 
of law, the courts of law were and are open, doubtless 
more fully open in India than they were in the Roman 
Empire. But for errors in policy or for defects in the 
law itself, the people of a province had no remedy avail- 
able in the Roman Empire except through petition to 
the sovereign. Neither is there now in India any re- 
course open to the inhabitants except an appeal to the 



26 ROMAN AND BRITISH EMPIRES 

Crown or to Parliament, a Parliament in which the In- 
dian subjects of the Crown have not been, and cannot be, 
represented. This was, and is, by the nature of the case, 
inevitable. 

In comparing the governmental systems of the two 
Empires, it is hardly necessary to advert to such differ- 
ences as the fact that India is placed under a Viceroy to 
whom all the other high functionaries, Governors, Lieu- 
tenant-Governors and Chief Commissioners, are subor- 
dinated, whereas, in the Roman world every provincial 
governor stood directly under the Emperor. Neither 
need one dwell upon the position in the English system 
of the Secretary of State for India in Council as a mem- 
ber of the British Cabinet. Such details do not affect 
the main point to which I now come. 

The territories conquered by the Romans were of 
three kinds. Some, such as Egypt, Macedonia, and Pon- 
tus, had been, under their own princes, monarchies prac- 
tically despotic. In these, of course, there could be no 
question of what we call popular government. Some 
had been tribal principalities, monarchic or oligarchic, 
such as those among the Iceni and Brigantes in Britain, 
the Arverni in Gaul, the Cantabrian mountaineers in 
Spain. Here, again, free institutions had not existed 
before, and could hardly have been created by the con- 
queror. The third kind consisted of small common- 
wealths, such as the Greek cities. These were fitted for 
self-government, which indeed they had enjoyed before 
they were subjected by Rome. Very wisely, municipal 
self-government was to a large extent left to them by the 
Emperors down till the time of Justinian. It was more 
complete in some cities than in others ; and it was in 
nearly all gradually reduced by the equalizing pressure of 
the central authority. But they were all placed under the 
governor of the province ; most of them paid taxes, and 
in most both the criminal and the higher civil jurisdiction 
were in the hands of imperial officials. Of the introduc- 
tion of any free institutions for the empire at large, or 



ROMAN AND BRITISH EMPIRES 27 

even for any province as a whole, there seems never to 
have been any question. Among the many constitutional 
inventions we owe to the ancient world representative 
government finds no place. A generation before the fall 
of the Republic, Rome had missed her opportunity when 
the creation of such a system was most needed and might 
have been most useful. After her struggle against the 
league of her Italian allies, she consented to admit them 
to vote in her own city tribes, instead of taking what 
seems to us moderns the obvious expedient of allowing 
them to send delegates to an assembly which should 
meet in Rome. So it befell that monarchy and a city 
republic or confederation of such republics remained 
the only political forms known to antiquity 1 . 

India is ruled despotically by the English, not merely 
because they found her so ruled, but because they con- 
ceive that no other sort of government would suit a vast 
population of different races and tongues, divided by the 
religious animosities of Hindus and Musulmans, and 
with no sort of experience of self-government on a scale 
larger than that of the Village Council. No more in 
India than in the Roman Empire has there been any 
question of establishing free institutions either for the 
country as a whole, or for any particular province. But 
the English, like the Romans, have permitted such self- 
government as they found to subsist. It subsists only 
in the very rudimentary but very useful form of the Vil- 

1 The nearest approach to any kind of provincial self-government and also the 
nearest approach to a representative system was made in the Provincial Councils 
which seem from the time of Augustus down to the fifth century to have existed 
in all or nearly all the provinces. They consisted of delegates from the cities of 
each province, and met annually in some central place, where stood the temple 
or altar to Rome and Augustus. They were presided over by the priest of these 
divinities, and their primary functions were to offer sacrifices, provide for the ex- 
pense of the annual games, and elect the priest for next year. However they seem 
to have also passed resolutions, such as votes of thanks to the outgoing priest or 
to a departing governor, and to have transmitted requests or inquiries to the Em- 
peror. Sometimes they arranged for the prosecution of a governor who had mis- 
governed them . but on the whole their functions were more ceremonial and or- 
namental than practically important ; nor would the emperors have suffered them 
to exert any real power, though they were valued as useful vehicles of provincial 
opinion (see Marquardt, Ramische Staatsver-waltung, vol. i, and an article in Eng. 
Hist, Review for April, 1893, by Mr. E. G. Hardy). 



28 ROMAN AND BRITISH EMPIRES 

lage Council just referred to, called in some parts of 
India the Panchayet or body of five. Of late years muni- 
cipal constitutions, resembling at a distance those of 
English boroughs, have been given to some of the larger 
cities as a sort of experiment, for the sake of training 
the people to a sense of public duty, and of relieving the 
provincial government of local duties. So far the experi- 
ment has in most cities been only a moderate success. 
The truth is that, though a few intelligent men, edu- 
cated in European ideas, complain of the despotic power 
of the Anglo-Indian bureaucracy, the people of India 
generally do not wish to govern themselves. Their tradi- 
tions, their habits, their ideas, are all the other way, and 
dispose them to accept submissively any rule which is 
strong and which neither disturbs their religion and cus- 
toms nor lays too heavy imposts upon them. 

Here let an interesting contrast be noted. The Roman 
Emperors were despots at home in Italy, almost as much, 
and ultimately quite as much, as in the provinces. The 
English govern their own country on democratic, India 
on absolutist principles. The inconsistency is patent but 
inevitable. It affords an easy theme for declamation 
when any arbitrary act of the Indian administration gives 
rise to complaints, and it may fairly be used as the founda- 
tion for an argument that a people which enjoys freedom 
at home is specially bound to deal justly and consider- 
ately with those subjects to whom she refuses a like free- 
dom. But every one admits in his heart that it is impos- 
sible to ignore the differences which make one group of 
races unfit for the institutions which have given energy 
and contentment to another more favourably placed. 

A similar inconsistency presses on the people of the 
United States in the Philippine Isles. It is a more 
obtrusive inconsistency because it has come more ab- 
ruptly, because it has come, not by the operation of a 
long series of historical causes, but by the sudden and 
little considered action of the American Republic itself, 
and because the American Republic has proclaimed, 



ROMAN AND BRITISH EMPIRES 29 

far more loudly and clearly than the English have ever 
done, the principle contained in the Declaration of In- 
dependence that the consent of the governed is the only 
foundation of all just government. The Americans will 
doubtless in time either reconcile themselves to their 
illogical position or alter it. But for the present it gives 
to thoughtful men among them visions of mocking 
spirits, which the clergy are summoned to exorcize by 
dwelling upon the benefits which the diffusion of a pure 
faith and a commercial civilization will confer upon the 
lazy and superstitious inhabitants of these tropical isles. 
Subject to the general principle that the power of 
the Emperor was everywhere supreme and absolute, the 
Romans recognized, at least in the earlier days of the 
Empire, considerable differences between the methods 
of administering various provinces. A distinction was 
drawn between the provinces of the Roman people, to 
which proconsuls or propraetors were sent, and the pro- 
vinces of Caesar, placed under the more direct control 
of the Emperor, and administered in his name by an 
official called the praeses or legatus Caesaris, or sometimes 
(as was the case in Judaea, at the time when it was ruled 
by Pontius Pilate) by a procurator, an officer primarily 
financial, but often entrusted with the powers of a praeses. 
Egypt received special treatment because the population 
was turbulent and liable to outbursts of religious passion, 
and because it was important to keep a great cornfield of 
the Empire in good humour. These distinctions between 
one province and another tended to vanish as the ad- 
ministrative system of the whole Empire grew better 
settled and the old republican forms were forgotten. Still 
there were always marked differences between Britain, 
for instance, at the one end of the realm and Syria at the 
other. So there were all sorts of varieties in the treat- 
ment of cities and tribes which had never been conquered, 
but passed peaceably through alliance into subjection. 
Some of the Hellenic cities retained their republican 
institutions till far down in imperial times. Distinctions 



30 ROMAN AND BRITISH EMPIRES 

not indeed similar, yet analogous, have existed between 
the different parts of British India. There is the old dis- 
tribution of provinces into Regulation and Non-Regula- 
tion. The name ' Province,' one may observe in passing, 
a name unknown elsewhere in the dominions of Bri- 
tain x (though a recent and vulgar visage sometimes ap- 
plies it to the parts of England outside of London) except 
as a relic of French dominion in Canada, bears witness to 
an authority which began, as in Canada, through con- 
quest. Though the names of Regulation and Non-Regu- 
lation provinces are now no longer used, a distinction 
remains between the districts to the higher posts in which 
none but members of the covenanted service are ap- 
pointed, and those in which the Government have a 
wider range of choice, and also between those districts 
for which the Governor-General can make ordinances in 
his executive capacity, and those which are legislated 
for by him in Council in the ordinary way. There are 
also many differences in the administrative systems 
of the different Presidencies and other territories, 
besides of course all imaginable diversities in the 
amount of independence left to the different ' Pro- 
tected States,' some of which are powerful kingdoms, 
like Hyderabad, while many, as for instance in Gujarat, 
are petty principalities of two or three dozen square miles. 
The mention of these protected States suggests an- 
other point of comparison. Rome brought many prin- 
cipalities or kingdoms under her influence, especially in 
the eastern parts of the Empire ; and dealt with each upon 
the basis of the treaty by which her supremacy had been 
acknowledged, allowing to some a wider, to some a nar- 
rower measure of autonomy 2 . Ultimately, however, all 
these, except a few on the frontiers, passed under her 
direct sway : and this frequently happened in cases where 

1 The use of the word to denote the two great ecclesiastical divisions of Eng- 
land (Province of Canterbury and Province of York) is a relic of the Roman im- 
perial system. 

2 For instance, Cappadocia, Pontus, and Commagene were left as subject king- 
doms till 17 a. d., 63 a. d., and 72 a. d. respectively. 



ROMAN AND BRITISH EMPIRES 31 

the native dynasty had died out, so that the title lapsed 
to the Emperor. The Iceni in Britain seem to have been 
such a protected State, and it was the failure of male 
heirs that caused a lapse. So the Indian Government 
was wont, when the ruling family became extinct or hope- 
lessly incompetent, to annex to the dominions of the 
British Crown the principality it had ruled. From the 
days of Lord Canning, however, a new policy has been 
adopted. It is now deemed better to maintain the native 
dynasties whenever this can be done, so a childless prince 
is suffered to adopt, or provide for the adoption of, some 
person approved by the Government ; and the descen- 
dants of this person are recognized as rulers 1 . The in- 
coming prince feels that he owes his power to the British 
Government, while adoption gives him a title in the eyes 
of his subjects. 

The differences I have mentioned between the British 
provinces are important, not only as respects adminis- 
tration, but as respects the system of landholding. All 
over India, as in many other Oriental countries, it is 
from the land that a large part of revenue, whether one 
calls it rent or land tax, is derived. In some provinces 
the rent is paid direct to the Government by the culti- 
vator, in others it goes to intermediary landlords, who 
in their turn are responsible to the State. In some 
provinces it has been permanently fixed, by what is 
called a Land-settlement 2 , and not always on the same 
principles. The subject is far too large and intricate to 
be pursued here. I mention it because in the Roman 
Empire also land revenue was the mainstay of the im- 

1 ' The extent to which confidence has been restored by Lord Canning's edict is 
shown by the curious fact that since its promulgation a childless ruler very rarely 
adopts in his own lifetime. An heir presumptive, who knows that he is to succeed 
and who may possibly grow restive if his inheritance is delayed, is for various ob- 
scure reasons not the kind of person whom an Oriental ruler cares to see idling 
about his palace, so that a politic chief oftens prefers leaving the duty of nominat- 
ing a successor to his widows, who know his mind and have every reason for 
wishing him long life.'— Sir A. C. Lyall in Lain Quarterly Review for October, 
1893. 

2 One finds something similar to this Land-settlement in the Roman plan of de- 
termining the land revenue of a province by what was called the lex J>rovinciae . 



33 ROMAN AND BRITISH EMPIRES 

perial treasury. Where territory had been taken in war, 
the fact of conquest was deemed to have made the 
Roman people ultimate owners of the land so acquired, 
and the cultivators became liable to pay what we should 
call rent for it. In some provinces this rent was farmed 
out to contractors called public ani, who offered to the 
State the sum equivalent to the rent of the area con- 
tracted for, minus the expense of collection and their own 
profit on the undertaking, and kept for themselves what- 
ever they could extract from the peasantry. This vicious 
system, resembling that of the tithe farmers in Ireland 
seventy years ago, was regulated by Nero and abolished 
by Hadrian, who placed the imperial procurator in charge 
of the land revenue except as regarded the forests and 
the mines. It exists to-day in the Ottoman Empire. 
Convenient for the State as it seems, it is wasteful, and 
naturally exposes the peasant, as is conspicuously the 
case in Asiatic Turkey, to oppressions perhaps even 
harder to check than are those of State officials. When 
the English came to India they found it in force there ; 
and the present landlord class in Bengal, called Zemin- 
dars, are the representatives of the rent or land tax- 
farmers under the native princes who were, perhaps 
unwisely, recognized as landowners by the British a 
century ago. This kind of tax-farming is, however, no 
longer practised in India, a merit to be credited to the 
English when we are comparing them with the Romans 
of the Republic and the earlier Empire. 

Where the revenue of the State comes from the land, 
the State is obliged to keep a watchful eye upon the 
condition of agriculture, since revenue must needs de- 
cline when agriculture is depressed. There was not in 
the Roman world, and there is not in India now, any 
question of agricultural depression arising from foreign 
competition, for no grain came into the Empire from 
outside, or comes now into India 1 . But a year of 
drought, or, in a long course of years, the exhaustion 

1 Rice, however, is sent from Lower Burma into India proper. 



ROMAN AND BRITISH EMPIRES 33 

of the soil, tells heavily on the agriculturist, and may 
render him unable to pay his rent or land tax. In bad 
years it was the practice of the more indulgent Em- 
perors to remit a part of the tax for the year: and one 
of the complaints most frequently made against harsh 
sovereigns, or extravagant ones like Justinian, was that 
they refused to concede such remissions. A similar in- 
dulgence has to be and is granted in India in like cases. 

Finance was the standing difficulty of the Roman as 
it is of the Anglo-Indian administrator. Indeed, the 
Roman Empire may be said to have perished from want 
of revenue. Heavy taxation, and possibly the exhaus- 
tion of the soil, led to the abandonment of farms, reduc- 
ing the rent derivable from the land. The terrible plague 
of the second century brought down population, and 
was followed by a famine. The eastern provinces had 
never furnished good fighting material : and the diminu- 
tion of the agricultural population of Italy, due partly 
to this cause, partly to the growth of large estates 
worked by slave labour, made it necessary to recruit 
the armies from the barbarians on the frontiers. Even 
in the later days of the Republic the native auxiliaries 
were beginning to be an important part of a Roman 
army. Moreover, with a declining revenue, a military 
establishment such as was needed to defend the eastern 
and the northern frontiers could not always be main- 
tained. The Romans had no means of drawing a 
revenue from frontier customs, because there was very 
little import trade ; but dues were levied at ports and 
there was a succession tax, which usually stood at five 
per cent. In most provinces there were few large for- 
tunes on which an income or property tax could have 
been levied, except those of persons who were already 
paying up to their capacities as being responsible for the 
land tax assessed upon their districts. The salt tax was 
felt so sorely by the poor that Aurelian was hailed as a 
benefactor when he abolished it. 

India has for many years past been, if not in financial 
3 



34 ROMAN AND BRITISH EMPIRES 

straits, yet painfully near the limit of her taxable re- 
sources. There too the salt tax presses hard upon the 
peasant ; and the number of fortunes from which much 
can be extracted by an income or property tax is, rela- 
tively to the population, very small. Comparing her 
total wealth with her population, India is a poor country, 
probably poorer than was the Roman Empire in the 
time of Constantine 1 . A heavy burden lies upon her in 
respect of the salaries of the upper branches of the 
Civil Service, which must of course be fixed at figures 
sufficient to attract a high order of talent from England, 
and a still heavier one in respect of military charges. 
On the other hand, she has the advantage of being able, 
when the guarantee of the British Government is given 
for the loan, to borrow money for railways and other 
public works, at a rate of interest very low as com- 
pared with what the best Native State would be obliged 
to offer, or as compared with that which the Roman 
Government paid. 

Under the Republic, Rome levied tribute from the 
provinces, and spent some of it on herself, though of 
course the larger part went to the general expenses of 
the military and civil administration. Under the Em- 
perors that which was spent in Rome became gradually 
less and less, as the Emperor became more and more 
detached from the imperial city, and after Diocletian, 
Italy was treated as a province. England, like Spain in 
the days of her American Empire and like Holland now, 
for a time drew from her Indian conquests a substantial 
revenue. An inquiry made in 1773 showed that, since 
1765, about two millions a year had been paid by the 



1 The total revenue of British India was, in a. d. 1840, 200,000,000 of rupees, and 
in 1898-9, 1,014,427,000 rupees, more than a fourth of which was land revenue and 
less than one-fourth from railways. (The exchange value of the rupee, formerly 
about two shilling's, is now about one shilling and four pence.) .£190,000,000 has 
been expended upon railways in British India and the Native States. The land 
revenue is somewhat increasing with the bringing of additional land under culti- 
vation. It is estimated that forty-two per cent, of the cultivable area is available 
for further cultivation. The funded debt of India is now £195,000,000, the un- 
funded about £12,000,000. 



ROMAN AND BRITISH EMPIRES 35 

Company to the British exchequer. By 1773, however, 
the Company had incurred such heavy debts that the 
exchequer had to lend them money : and since that 
time Britain has drawn no tribute from India. She 
profits by her dominion only in respect of having an 
enormous market for her goods, industrial or commer- 
cial enterprises offering comparatively safe investments 
for her capital, and a field where her sons can make 
a career. Apart from any considerations of justice or of 
sentiment, India could not afford to make any substantial 
contribution to the expenses of the non-Indian domi- 
nions of the Crown. It is all she can do to pay her own 
way. 

Those whom Rome sent out to govern the provinces 
were, in the days of the Republic and in the days of 
Augustus, Romans, that is to say Roman citizens and 
natives of Italy. Very soon, however, citizens born in 
the provinces began to be admitted to the great offices 
and to be selected by the Emperor for high employment. 
As early as the time of Nero, an Aquitanian chief, Julius 
Vindex, was legate of the great province of Gallia Lug- 
dunensis. When the imperial throne itself was filled by 
provincials, as was often the case from Trajan onwards, 
it was plain that the pre-eminence of Italy was gone. 
If a man, otherwise eligible, was not a full Roman 
citizen, the Emperor forthwith made him one. By the 
time of the Antonines (a. d. 138-180) there was prac- 
tically no distinction between a Roman and a provincial 
citizen ; and we may safely assume that the large major- 
ity of important posts, both military and civil, were held 
by men of provincial extraction. Indeed merit probably 
won its way faster to military than to civil distinction, 
for in governments which are militant as well as military, 
promotion by merit is essential to the success of the 
national arms, and the soldier identifies himself with the 
power he serves even faster than does the civilian. So, 
long before full citizenship was granted to the whole 
Roman world (about a. d. 217), it is clear that not only 



36 ROMAN AND BRITISH EMPIRES 

the lower posts in which provincials had always been 
employed, but the highest also were freely open to all 
subjects. A Gaul might be sent to govern Cilicia, or a 
Thracian Britain, because both were now Romans rather 
than Gauls or Thracians. The fact that Latin and Greek 
were practically familiar to nearly all highly educated 
civil servants, because Latin was the language of law as 
well as the tongue commonly spoken in the West, while 
Greek was the language of philosophy and (to a great 
extent) of letters, besides being the spoken tongue of 
most parts of the East, made a well-educated man fit for 
public employment everywhere, for he was not (except 
perhaps in Syria and Egypt and a few odd corners of 
the Empire) obliged to learn any fresh language. And 
a provincial was just as likely as an Italian to be highly 
educated. Thus the officials could easily get into touch 
with the subjects, and felt hardly more strange if they 
came from a distance than a Scotchman feels if he is 
appointed to a professorship in Quebec, or an Irish- 
man if he becomes postmaster in a Norfolkvillage. Noth- 
ing contributed more powerfully to the unity and the 
strength of the Roman dominion than this sense of an 
imperial nationality. 

The English in India have, as did the Romans ; 
always employed the natives in subordinate posts. The 
enormous majority of persons who- carry on the civil 
administration there at this moment are Asiatics. But 
the English, unlike the Romans, have continued to re- 
serve the higher posts for men of European stock. The 
contrast in this respect between the Roman and the 
English policy is instructive, and goes down to the 
foundation of the differences between English and 
Roman rule. As we have seen, the City of Rome 
became the Empire, and the Empire became Rome. 
National independence was not regretted, for the East 
had been denationalized before the Italian conqueror 
appeared, and the tribes of the West, even those 
who fought best for freedom, had not reached a genuine 



ROMAN AND BRITISH EMPIRES 37 

national life when Spain, Gaul, and Britain were brought 
under the yoke. In the third century a. d. a Gaul, a 
Spaniard, a Pannonian, a Bithynian, a Syrian called 
himself a Roman, and for all practical purposes was a 
Roman. The interests of the Empire were his interests, 
its glory his glory, almost as much as if he had been 
born in the shadow of the Capitol. There was, there- 
fore, no reason why his loyalty should not be trusted, 
no reason why he should not be chosen to lead in war, 
or govern in peace, men of Italian birth. So, too, the 
qualities which make a man capable of leading in war 
or administering in peace were just as likely to be 
found in a Gaul, or a Spaniard, or a German from the 
Rhine frontier as in an Italian. In fact, men of Italian 
birth play no great part in later imperial history 1 . 

It is far otherwise in India, though there was among 
the races of India no nation. The Englishman does 
not become an Indian, nor the Indian an Englishman. 
The Indian does not as a rule, though of course there 
have been not a few remarkable exceptions to the rule, 
possess the qualities which the English deem to be 
needed for leadership in war or for the higher posts of 
administration in peace 2 . For several reasons, reasons 
to be referred to later, he can seldom be expected to feel 
like an Englishman, and to have the same devotion to 
the interests of England which may be counted on in 
an Englishman. Accordingly the English have made 
in India arrangements to which there was nothing simi- 
lar in the Roman Empire. They have two armies, a 
native and a European, the latter of which is never suf- 
fered to fall below a certain ratio to the former. The 
latter is composed entirely of Englishmen. In the for- 
mer all military posts in line regiments above that of 

1 After the fifth century, Armenians, Isaurians, and Northern Macedonians 
figure more largely in the Eastern'Empire than do natives of the provinces round 
the Aegaean. 

2 Among these exceptions may be mentioned Sir Syed Ahmed of Aligurh, and 
the late Mr. Justice Trimbak Telang of Bombay, both men of remarkable force 
and elevation of character. 



38 ROMAN AND BRITISH EMPIRES 

subahdar (equivalent to captain) are reserved to English- 
men 1 . The artillery and engineer services are kept in 
English hands, i.e. there is hardly any native artillery. 
It is only, therefore, in the native contingents already 
referred to that natives are found in the higher grades. 
These contingents may be compared with the auxiliary 
barbarian troops under non- Roman commanders whom 
we find in the later ages of Rome, after Constantine. 
Such commanders proved sometimes, like the Vandal 
Stilicho, energetic defenders of the imperial throne, 
sometimes, like the Suevian Ricimer, formidable men- 
aces to it 2 . But apart from these, the Romans had but 
one army; and it was an army in which all subjects had 
an equal chance of rising. 

In a civil career, the native of India may go higher 
under the English than he can in a military one. A 
few natives, mostly Hindus, and indeed largely Bengali 
Hindus, have won their way into the civil service by 
passing the competitive Indian Civil Service examina- 
tion in England, and some of these have risen to the 
posts of magistrate and district judge. A fair proportion 
of the seats on the benches of the Supreme Courts 
in Calcutta, Madras, Bombay, Allahabad, and Lahore 
have been allotted to native barristers of eminence, 
several of whom have shown themselves equal in point 
of knowledge and capacity, as well- as in integrity, to 
the best judges selected from the European bar in India 
or sent out from the English bar. No native, however, 
has ever been thought of for the great places, such as 
those of Lieutenant-Governor or Chief Commissioner, 
although all British subjects are legally eligible for any 
post in the service of the Crown in any part of the British 
Dominions. 

1 The subahdar, however, is rather a non-commissioned than a commissioned 
officer, and is not a member of the British officers' mess. 

2 Russia places Musulmans from the Caucasian provinces in high military posts. 
But she has no army corresponding' to the native army in India, and as she has a 
number of Musulman subjects in European Russia it is all the more natural for 
her to have a Colonel Temirhan Shipsheff at Aralykh and a General Alikhanoff 
at Merv. 



ROMAN AND BRITISH EMPIRES 39 

Regarding the policy of this exclusion there has been 
much difference of opinion. As a rule, Anglo-Indian 
officials approve the course which I have described as 
that actually taken. But I know some who think that 
there are natives of ability and force of character such 
as to fit them for posts military as well as civil, higher 
than any to which a native has yet been advanced, and 
who sees advantages in selecting a few for such posts. 
They hold, however, that such natives ought to be 
selected for civil appointments, not by competitive 
examination in England but in India itself by those 
who rule there, and in respect of personal merits tested 
by service. Some opposition to such a method might 
be expected from members of the regular civil service, 
who would consider their prospects of promotion to 
be thereby prejudiced. 

Here we touch an extremely interesting point of com- 
parison between the Roman and the English systems. 
Both nations, when they started on their career of con- 
quest, had already built up at home elaborate constitu- 
tional systems in which the rights of citizens, both 
public and private civil rights, had been carefully settled 
and determined. What was the working of these rights 
in the conquered territories ? How far were they ex- 
tended by the conquerors, Roman and English, and with 
what results ? 

Rome set out from the usual practice of the city re- 
publics of the ancient world. No man enjoyed any rights 
at all, public or private, except a citizen of the Republic. 
A stranger coming to reside in the city did not, no matter 
how long he lived there, nor did his son or grandson, 
obtain those rights unless he was specially admitted to 
become a citizen. From this principle Rome, as she grew, 
presently found herself obliged to deviate. She admitted 
one set of neighbours after another, sometimes as allies, 
sometimes in later days, as conquered and incorporated 
communities, to a citizenship which was sometimes in- 
complete, including only private civil rights, sometimes 



40 ROMAN AND BRITISH EMPIRES 

complete, including the right of voting in the assembly 
and the right of being chosen to a public office. Before 
the dictatorship of Julius Caesar practically all Italians, 
except the people of Cisalpine Gaul, which remained a 
province till b. c. 43, had been admitted to civic rights. 
Citizenship, complete or partial (i.e. including or not 
including public rights) had also begun to be conferred 
on a certain number of cities or individuals outside Italy. 
Tarsus in Cilicia, of which St. Paul was a native, enjoyed 
it, so he was born a Roman citizen. This process of en- 
larging citizenship went on with accelerated speed, in 
and after the days of the Flavian Emperors. Under 
Hadrian, the whole of Spain seems to have enjoyed civic 
rights. Long before this date the ancient right of voting 
in the Roman popular Assembly had become useless, 
but the other advantages attached to the status of citizen 
were worth having, for they secured valuable immunities. 
Finally, early in the third century a. d., every Roman 
subject was by imperial edict made a citizen for all pur- 
poses whatsoever. Universal eligibility to office had, 
as we have seen, gone ahead of this extension, for all 
offices lay in the gift of the Emperor or his ministers; 
and when it was desired to appoint any one who might 
not be a full citizen, citizenship was conferred along with 
the office. Thus Rome at last extended to all her sub- 
jects the rights that had originally been confined to her 
own small and exclusive community. 

In England the principle that all private civil rights 
belong to every subject alike was very soon established, 
and may be said to have never been doubted since the 
final extinction of serfdom in the beginning of the seven- 
teenth century. Public civil rights, however, did not 
necessarily go with private. Everybody, it is true, was 
(subject to certain religious restrictions now almost 
entirely repealed) eligible to any office to which he 
might be appointed by the Crown, and was also (subject 
to certain property qualifications which lasted till our 
own time) capable of being chosen to fill any elective 



ROMAN AND BRITISH EMPIRES 41 

post or function, such as that of member of the House 
of Commons. But the right of voting did not neces- 
sarily go along with other rights, whether pubjic or 
private, and it is only within the last forty years that it 
has been extended by a series of statutes to the bulk 
of the adult male population. Now when Englishmen 
began to settle abroad, they carried with them all their 
private rights as citizens, and also their eligibility to 
office ; but their other public rights, i. c. those of voting 
they could not carry, because these were attached to 
local areas in England. When territories outside Eng- 
land were conquered, their free inhabitants, in becom- 
ing subjects of the Crown, became therewith entitled to 
all such rights of British subjects as were not connected 
with residence in Britain : that is to say, they had all the 
private civil rights of Englishmen, and also complete 
eligibility to public office (unless of course some special 
disqualification was imposed). The rights of an English 
settler in Massachusetts in the seventeenth and eigh- 
teenth centuries were those of an Englishman, except 
that he could not vote at an English parliamentary elec- 
tion because he was not resident in any English constitu- 
ency; and the same rule became applicable to a French 
Canadian after the cession of Canada to the British 
Crown. 

So when India was conquered, the same principles 
were again applied. Every free Indian subject of the 
Crown soon became entitled to the private civil rights 
of an Englishman, except so far as his own personal 
law, Hindu or Musulman or Parsi or Jain, might modify 
those rights ; and if there was any such modification, 
that was recognized for his benefit rather than to his 
prejudice. Thus the process which the Romans took 
centuries to complete was effected almost at once in 
India by the application of long established doctrines of 
English law. Accordingly we have in India the singular 
result that although there are in that country no free 
institutions (other than those municipal ones previously 



42 ROMAN AND BRITISH EMPIRES 

referred to) nor any representative government, every 
Indian subject is eligible to any office in the gift of the 
Crown anywhere, and to any post or function to which 
any body of electors may select him. He may be chosen 
by a British constituency a member of the British House 
of Commons, or by a Canadian constituency a member 
of the House of Commons of Canada. Two natives of 
India (both Parsis) have already been chosen, both by 
London constituencies, to sit in the British House. So 
a native Hindu or Musulman might be appointed by the 
Crown to be Lord Chief Justice of England or Governor- 
General of Canada or Australia. He might be created a 
peer. He might become Prime Minister. And as far as 
legal eligibility goes, he might be named Governor- 
General of India, though as a matter of practice, no 
Indian has ever been placed in any high Indian office. 
Neither birth, nor colour, nor religion constitutes any 
legal disqualification. This was expressly declared as 
regards India by the India Act of 1833, and has been 
more than once formally declared since, but it did not 
require any statute to establish what flowed from the 
principles of our law. And it need hardly be added that 
the same principles apply to the Chinese subjects of the 
Crown in Hong Kong or Singapore and to the negro 
subjects of the Crown in Jamaica or Zululand. In this 
respect at least England has^worthily repeated the liberal 
policy of Rome. She has done it, however, not by way of 
special grants, but by the automatic and probably uncon- 
templated operation of the general principles of her law. 

As I have referred to the influence of English con- 
stitutional ideas, it is worth noting that it is these ideas 
which have led the English of late years not only to 
create in India city municipalities, things entirely foreign 
to the native Indian mind, but also to provide by statute 
(in 1892) for the admission of a certain number of nomi- 
nated non-official members to the legislative councils of 
the Governors in Bengal, Bombay, Madras, the North- 
West Provinces and Oudh, and the Punjab. These 



ROMAN AND BRITISH EMPIRES 43 

members are nominated, not elected, because it has been 
found difficult to devise a satisfactory scheme of election. 
But the provision made for the presence of native non- 
officials testifies to the wish of the English Govern- 
ment to secure not only a certain amount of outside 
opinion, but also a certain number of native councillors 
through whom native sentiment may be represented, 
and may obtain its due influence on the conduct of 
affairs. 

The extension of the civil rights of Englishmen to the 
subjects of the Crown in India would have been any- 
thing but a boon had it meant the suppression and 
extinction of native law and custom. This of course it 
has not meant. Neither had the extension of Roman 
conquest such an effect in the Roman Empire ; and 
even the grant of citizenship to all subjects did not 
quite efface local law and usage. As the position and 
influence of English law in India, viewed in comparison 
with the relation of the older Roman law to the Roman 
provinces, is the subject of another of these Essays, 
I will here pass over the legal side of the matter, and 
speak only of the parallel to be noted between the poli- 
tical action of the conquering nations in both cases. 

Both have shown a prudent wish to avoid disturbing, 
any further than the fixed principles of their policy made 
needful, the usages and beliefs of their subjects. The 
Romans took over the social and political system which 
they found in each of the very dissimilar regions they 
conquered, placed their own officials above it, modified 
it so far as they found expedient for purposes of revenue 
and civil administration generally, but otherwise let it 
stand as they found it and left the people alone. In 
course of time the law and administration of the con- 
querors, and the intellectual influences which literature 
called into play, did bring about a considerable measure 
of assimilation between Romans and provincials, espe- 
cially in the life and ideas of the upper classes. But 
this was the result of natural causes. The Romans did 



44 ROMAN AND BRITISH EMPIRES 

not consciously and deliberately work for uniformity. 
Especially in the sphere of religion they abstained from 
all interference. They had indeed no temptation to inter- 
fere either with religious belief or with religious prac- 
tice, for their own system was not a universal but a 
strictly national religion, and the educated classes had' 
begun to sit rather loose to that religion before the 
process of foreign conquest had gone far. According 
to the theory of the ancient world, every nation had 
its own deities, and all these deities were equally to 
be respected in their own country. Whether they were 
at bottom the same deities under different names, or 
were quite independent divine powers, did not matter. 
Each nation and each member of a nation was expected 
to worship the national gods : but so long as an indi- 
vidual man did not openly reject or insult those gods, 
he might if he pleased worship a god belonging to 
some other country, provided that the worship was not 
conducted with shocking or demoralizing rites, such as 
led to the prohibition of the Bacchanalian cult at Rome 1 . 
The Egyptian Serapis was a fashionable deity among 
Roman women as early as the time of Catullus. We 
are told that Claudius abolished Druidism on account 
of its savage cruelty, but this may mean no more than 
that he forbade the Druidic practice of human sacrifices 2 . 
There was therefore, speaking broadly, no religious 
persecution and little religious intolerance in the ancient 
world, for the Christians, it need hardly be said, were 
persecuted not because of their religion but because 
they were a secret society, about which, since it was new, 
and secret, and Oriental, and rejected all the gods of 
all the nations alike, the wildest calumnies were readily 
believed. The first religious persecutors were the Persian 
Fire-worshipping kings of the Sassanid dynasty, who 
occasionally worried their Christian subjects. 

1 Constantine prohibited the immoral excesses practised by the Syrians of Heli- 
opolis. 

2 ' Druidarum religionem apud Gallos dirae imrnanitatis et tantum civibus sub 
Augnsto interdictam penitus abolevit.' — Sueton, Vita Claud, c. 25. 



ROMAN AND BRITISH EMPIRES 45 

Neither, broadly speaking, was religious propagan- 
dism known to the ancient world. There were no mis- 
sions, neither foreign missions nor home missions. If a 
man did not sacrifice to the gods of his own country, his 
fellow citizens might think ill of him. If he was accused 
of teaching that the gods did not exist, he might possibly, 
like Socrates, be put to death, but nobody preached 
to him. On the other hand, if he did worship them, 
he was in the right path, and it would have been deemed 
not only impertinent, but almost impious, for the native 
of another country to seek to convert him to another 
faith, that is to say, to make him disloyal to the gods 
of his own country, who were its natural and time- 
honoured protectors. The only occasions on which one 
hears of people being required to perform acts of wor- 
ship to any power but the deities of their country are 
those cases in which travellers were expected to offer 
a prayer or a sacrifice to some local deity whose terri- 
tory they were traversing, and whom it was therefore 
expedient to propitiate, and those other cases in which 
a sort of worship was required to be rendered to the 
monarch, or the special protecting deity of the monarch, 
under whose sway they lived. The edict attributed to 
Nebuchadnezzar in the book of Daniel may in this con- 
nexion be compared with the practice in the Roman 
Empire of adoring the spirit that watched over the 
reigning Caesar. To burn incense on the altar of the 
Genius of the Emperor was the test commonly proposed 
to the persons accused of being Christians. 

All this is the natural result of polytheism. With the 
coming of faiths each of which claims to be exclusively 
and universally true, the face of the world was changed. 
Christianity was necessarily a missionary religion, and 
unfortunately soon became also, forgetting the precepts 
of its Founder, a persecuting religion. Islam followed 
in the same path, and for similar reasons. In India 
the strife of Buddhism with Hinduism gave rise to 
ferocious persecutions, which however were perhaps as 



46 ROMAN AND BRITISH EMPIRES 

much political as religious. When the Portuguese and 
Spaniards began to discover and conquer new countries 
beyond the oceans, the spread of religion was in the 
mouths of all the adventurers, and in the minds of many 
of the baser as well as of the better sort. Spain accord- 
ingly forced her faith upon all her subjects, and found 
no great resistance from the American peoples, though 
of course their Christianity seldom went deep, as in- 
deed it remains to-day in many parts of Central and 
South America, a thin veneer over the ancient supersti- 
tions of the aborigines. Portugal did the like, so far as 
she could, in India and in Africa. So too the decrees 
by which the French colonizing companies were founded 
in the days of Richelieu provided that the Roman Catho- 
lic faith was to be everywhere made compulsory, and that 
converted pagans were to be admitted to the full civil 
rights of Frenchmen 1 . But when the English set forth 
to trade and conquer they were not thinking of religion. 
The middle of the eighteenth century, when Bengal and 
Madras were acquired, was for England an age when 
persecution had died out and missionary propagandism 
had scarcely begun. The East India Company did not 
at first interfere in any way with the religious rites it 
found practised by the people, however cruel or immoral 
they might be. It gave no advantages to Christian con- 
verts, and for a good while it even discouraged the pre- 
sence of missionaries, lest they should provoke dis- 
turbances. Bishops were thought less dangerous, and 
one was appointed, with three Archdeacons under him, 
by the Act of 1813. A sort of miniature church establish- 
ment, for the benefit of Europeans, still exists and is sup- 
ported out of Indian revenues. After a time, however, 
some of the more offensive or harmful features of native 
worship began to be forbidden. The human sacrifices 
that occasionally occurred among the hill tribes were 
treated as murders, and the practice of Sutti — the 
self-immolation of the Hindu widow on her husband's 

1 I owe this fact to Sir A. C. Lyall (op. cit. p. 66). 



ROMAN AND BRITISH EMPIRES 47 

funeral pyre — was forbidden as far back as 1829. No 
hindrance is now thrown in the way of Christian mis- 
sions : and there is perfect equality, as respects civil 
rights and privileges, not only between the native 
votaries of all religions, but also between them and 
Europeans. 

So far as religion properly so-called is concerned, 
the policy of the English is simple and easy to apply. 
But as respects usages which are more or less associated 
with religion in the native mind, but which European 
sentiment disapproves, difficulties sometimes arise. The 
burning of the widow was one of these usages, and has 
been dealt with at the risk of offending Hindu prejudice. 
Infanticide is another ; and the British Government try 
to check it, even in some of the protected States. The 
marriage of young children is a third: and this it has 
been thought not yet prudent to forbid, although the best 
native opinion is beginning to recognize the evils that 
attach to it. Speaking generally, it may be said that the 
English have, like the Romans but unlike the Spaniards, 
shown their desire to respect the customs and ideas of 
the conquered peoples. Indifferentism has served them 
in their career of conquest as well as religious eclecticism 
served the Romans, so that religious sentiment, though 
it sometimes stimulated the valour of their native ene- 
mies, has not really furnished any obstacle to the pacifica- 
tion of a conquered people. The English have, however, 
gone further than did the Romans in trying to deter their 
subjects from practices socially or morally deleterious. 

As regards the work done by the English for educa- 
tion in the establishment of schools and Universities, 
no comparison with Rome can usefully be drawn : 
because it was not deemed in the ancient world to be 
the function of the State to make a general educational 
provision for its subjects. The Emperors, however, 
appointed and paid teachers of the liberal arts in some 
of the greater cities. That which the English have 
done, however, small as it may appear in comparison 



48 ROMAN AND BRITISH EMPIRES 

with the vast population they have to care for 1 , witnesses 
to the spirit which has animated them in seeking to 
extend to the conquered the opportunities of progress 
which they value for themselves. 

The question how far the triumphs of Rome and of 
England are due to the republican polity of the one, 
and the practically republican (though not until 1867 
or 1885 democratic) polity of the other, is so large 
a one that I must be content merely to indicate it as 
well deserving a discussion. Several similar empires 
have been built up by republican governments of the 
oligarchic type, as witness the empire of Carthage in 
the ancient, and that of Venice in the later mediaeval 
world. One can explain this by the fact that in such 
governments there is usually, along with a continuity of 
policy hardly to be expected from a democracy, a con- 
stant succession of capable generals and administrators 
such as a despotic hereditary monarchy seldom provides, 
for a monarchy of that kind must from time to time 
have feeble or dissolute sovereigns, under whom bad 
selections will be made for important posts, policy will 
oscillate, and no adequate support will be given to the 
armies or fleets which are maintaining the interests of 
the nation abroad. A republic is moreover likely to 
have a larger stock of capable and experienced men on 
which to draw during the process of conquering and 
organizing. The two conspicuous instances in which 
monarchies have acquired and. long held vast external 
dominions are the Empires of Spain and Russia. The 
former case is hardly an exception to the doctrine just 
stated, because the oceanic Empire of Spain was won 
quickly and with little fighting against opponents im- 
measurably inferior, and because it had no contermi- 
nous enemies to take advantage of the internal decay 
which soon set in. In the case of Russia the process 

1 There are in India five examining and degree-granting Universities, with 
about 8,000 matriculated students, nearly all of them taught in the numerous af- 
filiated colleges. The total number of persons returned as receiving instruction in 
India is 4,357,000, of whom 402,000 are girls. 



ROMAN AND BRITISH EMPIRES 49 

has been largely one of natural expansion over re- 
gions so thinly peopled and with inhabitants so back- 
ward that no serious resistance was made to an advance 
which went on rather by settlement than by conquest. 
It is only in the Caucasus and in Turkistan that Russia 
has had to establish her power by fighting. Her con- 
flicts even with the Persians and the Ottoman Turks 
have been, as Moltke is reported to have said, battles of 
the one-eyed against the blind. But it must be added 
that Russia has shown during two centuries a remark- 
able power of holding a steady course of foreign policy. 
She sometimes trims her sails, and lays the ship upon 
the other tack, but the main direction of the vessel's 
course is not altered. This must be the result of wisdom 
or good fortune in the choice of ministers, for the 
Romanoff dynasty has not contained more than its fair 
average of men of governing capacity. 

There is one other point in which the Romans and 
the English may be compared as conquering powers. 
Both triumphed by force of character. During the two 
centuries that elapsed between the destruction of Car- 
thage, when Rome had already come to rule many pro- 
vinces, and the time of Vespasian, when she had ceased to 
be a city, and was passinginto a nation conterminous with 
her dominions, the Romans were the ruling race of the 
world, small in numbers, even if we count the peoples of 
middle Italy as Romans, but gifted with such talents for 
war and government, and possessed of such courage 
and force of will as to be able, not only to dominate the 
whole civilized world and hold down its peoples, but 
also to carry on a succession of bloody civil wars among 
themselves without giving those peoples any chance of 
recovering their freedom. The Roman armies, though 
superior in discipline to the enemies they had to encoun- 
ter, except the Macedonians and Greeks, were not gene- 
rally superior in arms, and had no resources of superior 
scientific knowledge at their command. Their adver- 
saries in Africa, in Greece, and in Asia Minor were as far 
4 



50 ROMAN AND BRITISH EMPIRES 

advanced in material civilization as they were them- 
selves. It was their strenuous and indomitable will, 
buoyed up by the pride and self-confidence born of a long 
succession of victories in the past, that enabled them to 
achieve this unparalleled triumph. The triumph was a 
triumph of character, as their poet felt when he penned 
the famous line, Moribus antiquis stat res Romano, virisque. 
And after the inhabitants of the City had ceased to be 
the heart of the Empire, this consciousness of great- 
ness passed to the whole population of the Roman 
world when they compared themselves with the bar- 
barians outside their frontiers. One finds it even in 
the pages of Procopius, a Syrian writing in Greek, 
after the western half of the Empire had been dismem- 
bered by barbarian invasions. 

The English conquered India with forces much 
smaller than those of the Romans; and their success 
in subjugating a still vaster population in a shorter 
time may thus appear more brilliant. But the Eng- 
lish had antagonists immeasurably inferior in valour, in 
discipline, in military science, and generally also in the 
material of war, to those whom the Romans overcame. 
Nor had they ever either a first-rate general or a monarch 
of persistent energy opposed to them. No Hannibal, 
nor even a Mithradates, appeared to bar their path. 
Hyder AH had no nation behind him; and fortune 
spared them an encounter with the Afghan Ahmed 
Shah and the Sikh Ranjit Singh. Their most formid- 
able opponents might rather be compared with the 
gallant but untrained Celtic Vercingetorix, or the 
showy but incompetent Antiochus the Great. It was 
only when Europeans like Dupleix came upon the scene 
that they had men of their own kind to grapple with; 
and Dupleix had not the support from home which 
Clive could count on in case of dire necessity. Still the 
conquest of India was a splendid achievement, more 
striking and more difficult, if less romantic, than the 
conquest of Mexico by Hernan Cortez or the conquest of 



ROMAN AND BRITISH EMPIRES 51 

Peru by Francisco Pizarro, though it must be admitted 
that the courage of these two adventurers in venturing 
far into unknown regions with a handful of followers has 
never been surpassed. Among the English, as among 
the Romans, the sense of personal force, the conscious 
ascendency of a race so often already victorious, with 
centuries of fame behind them, and a contempt for 
the feebler folk against whom they were contending, 
were the main source of that dash and energy and 
readiness to face any odds which bore down all resis- 
tance. These qualities have lasted into our own time. 
No more brilliant examples were ever given of them 
than in the defence of the Fort at Lucknow and in the 
siege of Delhi at the time of the Indian Mutiny of 
1857-8. And it is worth noting that almost the only 
disasters that have ever befallen the British arms have 
occurred where the general in command was either 
incompetent, as must sometimes happen in every army, 
or was wanting in boldness. In the East, more than 
anywhere else, confidence makes for victory, and one 
victory leads on to another. 

It is by these qualities that the English continue to 
hold India. In the higher grades of the civil adminis- 
tration which they fill there are only about one thousand 
persons : and these one thousand control two hundred 
and eighty-seven millions, doing it with so little friction 
that they have ceased to be surprised at this extraor- 
dinary fact. The English have impressed the imagina- 
tion of the people by their resistless energy and their 
almost uniform success. Their domination seems to 
have about it an element of the supernatural, for the 
masses of India are still in that mental condition which 
looks to the supernatural for an explanation of whatever 
astonishes it. The British Raj fills them with a sense of 
awe and mystery. That nearly three hundred millions 
of men should be ruled by a few palefaced strangers 
from beyond the great and wide sea, strangers who all 
obey some distant power, and who never, like the 



52 ROMAN AND BRITISH EMPIRES 

lieutenants of Oriental sovereigns, try to revolt for their 
own benefit — this seems too wonderful to be anything 
but the doing of some unseen and irresistible divinity. 
I heard at Lahore an anecdote which, slight as it is, 
illustrates the way in which the native thinks of these 
things. A tiger had escaped from the Zoological Gar- 
dens, and its keeper, hoping to lure it back, followed 
it. When all other inducements had failed, he lifted 
up his voice and solemnly adjured it in the name of 
the British Government, to which it belonged, to come 
back to its cage. The tiger obeyed. 

Now that we have rapidly surveyed the more salient 
points of resemblance or analogy between these two 
empires, it remains to note the capital differences be- 
tween them, one or two of which have been already 
incidentally mentioned. On the most obvious of all 
I have already dwelt. It is the fact that, whereas the 
Romans conquered right out from their City in all 
directions — south, north, west, and east — so that the 
capital, during the five centuries from b. c. 200 (end of 
the Second Punic War) to a. d. 325 (foundation of Con- 
stantinople), stood not far from the centre of their domi- 
nions, England has conquered India across the ocean, 
and remains many thousands of miles from the nearest 
point of her Indian territory. Another not less obvious 
difference is perhaps less important than it seems. 
Rome was a city, and Britain is a country. Rome, when 
she stepped outside Italy to establish in Sicily her first 
province, had a free population of possibly only seventy 
or eighty thousand souls. Britain, when she began her 
career of conquest at Plassy, had (if we include Ireland, 
then still a distinct kingdom, but then less a source of 
weakness than she has sometimes since been) a popula- 
tion of at least eleven or twelve millions. But, apart from 
the fact that the distance from Britain to India round the 
Cape made her larger population less available for action 
in India than was the smaller population of Rome for 
action in the Mediterranean, the comparison must not 



ROMAN AND BRITISH EMPIRES 53 

really be made with Rome as a city, but with Rome as 
the centre of a large Italian population, upon which 
she drew for her armies, and the bulk of which had, 
before the end of the Republic, become her citizens. 
On this point of dissimilarity no more need be said, 
because its significance is apparent. I turn from it to 
another of greater consequence. 

The relations of the conquering country to the con- 
quered country, and of the conquering race to the 
conquered races, are totally different in the two cases 
compared. In the case of Rome there was a similarity 
of conditions which pointed to and ultimately effected 
a fusion of the peoples. In the case of England there 
is a dissimilarity which makes the fusion of her people 
with the peoples of India impossible. 

Climate offers the first point of contrast. Rome, to 
be sure, ruled countries some of which were far hotter 
and others far colder than was the valley of the Tiber. 
Doubtless the officer who was stationed in Nubia com- 
plained of the torrid summer, much as an English 
officer complains of Ouetta or Multan ; nor were the 
winters of Ardoch or Hexham agreeable to a soldier 
from Apulia. But if the Roman married in Nubia, he 
could bring up his family there. An English officer 
cannot do this at Ouetta or Multan. The English race 
becomes so enfeebled in the second generation by liv- 
ing without respite under the Indian sun that it would 
probably die out, at least in the plains, in the third 
or fourth. Few Englishmen feel disposed to make 
India their home, if only because the physical condi- 
tions of life there are so different from those under 
which their earlier years were passed. But the Italian 
could make himself at home, so far as natural condi- 
tions went, almost anywhere from the Dnieper to the 
Guadalquivir. 

The second contrast is in the colour of the races. 
All the races of India are dark, though individuals may 
be found among high-caste Brahmins and among the 



54 ROMAN AND BRITISH EMPIRES 

Parsis of Poona or Gujarat who are as light in hue as 
many Englishmen. Now to the Teutonic peoples, and 
especially to the English and Anglo-Americans, the 
difference of colour means a great deal. It creates a 
feeling of separation, perhaps even of a slight repul- 
sion. Such a feeling may be deemed unreasonable 
or unchristian, but it seems too deeply rooted to be 
effaceable in any time we can foresee. It is, to be 
sure, not nearly so strong towards members of the 
more civilized races of India, with their faces often full 
of an intelligence and refinement which witnesses to 
many generations of mental culture, as it is in North 
America towards the negroes of the Gulf Coast, or in 
South Africa towards the Kafirs. Yet it is sufficient to 
be, as a rule, a bar to social intimacy, and a complete 
bar to intermarriage. 

Among the highest castes of Hindus and among the 
most ancient princely families, such as those famous 
Rajput dynasties whose lineage runs back further than 
does that of any of the royal houses of Europe, there is 
a corresponding pride of race quite as strong as that 
felt by the best-born European. So, too, some of the 
oldest Musulman families, tracing their origin to the 
relatives of the Prophet himself, are in respect of long 
descent equal to any European houses. Nevertheless, 
although the more educated and tactful among the 
English pay due honour to these families, colour would 
form an insurmountable barrier to intermarriage, even 
were the pride of the Rajputs disposed to invite it. 
The oldest of the Rajput dynasties, that of Udaipur, 
always refused to give a daughter in marriage even 
to the Mogul Emperors. 

There was no severing line like this in the ancient 
world. The only dark races (other than the Egyptians) 
with whom the Romans came in contact were some 
of the Numidian tribes, few of whom became really 
Romanized, and the Nubians of the Middle Nile, also 
scarcely within the pale of civilization. The question, 



ROMAN AND BRITISH EMPIRES 55 

therefore, did not arise in the form it has taken in India. 
Probably, however, the Romans would have felt and 
acted not like Teutons, but rather as the Spanish and 
Portuguese have done. Difference of colour does not 
repel members of these last-named nations. Among 
them, unions, that is to say legitimate unions, of whites 
with dark-skinned people, are not uncommon, nor is the 
mulatto or quadroon offspring kept apart and looked 
down upon as he is among the Anglo-Americans. 
Nothing contributed more to the fusion of the races 
and nationalities that composed the Roman Empire 
than the absence of any physical and conspicuous 
distinctions between those races, just as nothing did 
more to mitigate the horrors of slavery than the fact 
that the slave was usually of a tint and type of features 
not markedly unlike those of his master. Before the 
end of the Republic there were many freedmen in the 
Senate, though their presence there was regarded as 
a sign of declension. The son of a freedman passed 
naturally and easily — as did the poet Horace — into the 
best society of Rome when his personal merits or the 
favour of a great patron gave him entrance, though his 
detractors found pleasure in reminding one another of 
his origin. In India it is otherwise. Slavery, which 
was never harsh there, has fortunately not come into 
the matter, in the way it did in the Southern States 
of America and in South Africa. But the population 
is sharply divided into whites and natives. The so- 
called Eurasians, a mixed race due to the unions of 
whites with persons of Indian race, give their sym- 
pathies to the whites, but are treated by the latter as 
an inferior class. They are not numerous enough to 
be an important factor, nor do they bridge over the 
chasm which divides the rulers from the ruled. It is 
not of the want of political liberty that the latter com- 
plain, for political liberty has never been enjoyed in 
the East, and would not have been dreamt of had not 
English literature and English college teaching im- 



56 ROMAN AND BRITISH EMPIRES 

planted the idea in the minds of the educated natives. 
But the hauteur of the English and the sense of social 
incompatibility which both elements feel, are unfortu- 
nate features in the situation, and have been so from 
the first. Even in 1813 the representatives of the East 
India Company stated to a committee of the House of 
Commons that ' Englishmen of classes not under the 
observation of the supreme authorities were notorious 
for the contempt with which, in their ignorance and 
arrogance, they contemplated the usages and institu- 
tions of the natives, and for their frequent disregard of 
justice and humanity in their dealings with the people 
of India 1 .' And the Act of 1833 requires the Govern- 
ment of India ' to provide for the protection of the 
natives from insult and outrage in their persons, reli- 
gions, and opinions 2 .' 

It may be thought that, even if colour did not form 
an obstacle to intermarriage, religion would. Religion, 
however, can be changed, and colour cannot. In North 
America blacks and whites belong to the same religious 
denominations, but the social demarcation remains com- 
plete. Still it is true that the difference of religion does 
constitute in India a further barrier not merely to inter- 
marriage but also to intimate social relations. Among 
the Musulmans the practice, or at any rate the legal 
possibility of polygamy, naturally deters white women 
from a union they might otherwise have contemplated. 
(There have, however, been a few instances of such 
unions.) Hinduism stands much further away from 
Christianity than does Islam ; and its ceremonial rules 
regarding the persons in whose company food may be 
partaken of operate against a form of social intercourse 
which cements intimacy among Europeans 3 . 

One must always remember that in the East religion 
constitutes both a bond of union and a dividing line 

1 See Ilbert's Govermnent of India, p. 77. 2 Ibid. p. 91. 

3 The number of Hindus in all India is estimated at 207 millions, that of Musul- 
mans at fifty-seven millions, aboriginal races nine millions, Christians two mil- 
lions. 



ROMAN AND BRITISH EMPIRES 57 

of severance far stronger and deeper than it does in 
Western Europe. It largely replaces that national 
feeling which is absent in India and among the Eastern 
peoples (except the Chinese and Japanese) generally. 
Among Hindus and Musulmans religious practices are 
inwoven with a man's whole life. To the Hindu more 
especially caste is everything. It creates a sort of nation- 
ality within a nationality, dividing the man of one caste 
from the man of another, as well as from the man 
who stands outside Hinduism altogether. Among Mus- 
lims there is indeed no regular caste (though evident 
traces of it remain among the Muhamadans of India) ; 
but the haughty exclusiveness of Islam keeps its vo- 
taries quite apart from the professors of other faiths. 
The European in India, when he converses with either 
a Hindu or a Musulman, feels strongly how far away 
from them he stands. There is always a sense of 
constraint, because both parties know that a whole 
range of subjects lies outside discussion, and must 
not be even approached. It is very different when 
one talks to a native Christian of the upper ranks. 
There is then no great need for reserve sa.ve, of 
course, that the racial susceptibilities of the native 
gentleman who does not belong to the ruling class 
must be respected. Community of religion in carry- 
ing the educated native Christian far away from the 
native Hindu or Muslim, brings him comparatively 
near to the European. Because he is a Christian he 
generally feels himself more in sympathy with his Euro- 
pean rulers than he does with his fellow subjects of the 
same race and colour as himself. 

Here I touch a matter of the utmost interest when 
one thinks of the more remote future of India. Political 
consequences greater than now appear may depend 
upon the spread of Christianity there, a spread whose 
progress, though at present scarcely perceptible in the 
upper classes, may possibly become much more rapid 
than it has been during the last century. I do not 



58 ROMAN AND BRITISH EMPIRES 

say that Hinduism or Islam is a cause of hostility to 
British rule. Neither do I suggest that a Christian 
native population would become fused with the Euro- 
pean or Eurasian population. But if the number of 
Christians, especially in the middle and upper ranks 
of Indian society, were to increase, the difficulty of 
ascertaining native opinion, now so much felt by In- 
dian administrators, would be perceptibly lessened, and 
the social separation of natives and Europeans might 
become less acute, to the great benefit of both sections 
of the population. 

When we turn back to the Roman Empire how strik- 
ing is the absence of any lines of religious demarca- 
tion ! One must not speak of toleration as the note of 
its policy, because there was nothing to tolerate. All 
religions were equally true, or equally useful, each for 
its own country or nation. The satirist of an age which 
had already lost belief in the Olympian deities might 
scoff at the beast-gods of Egypt and the fanaticism which 
their worship evoked. But nobody thought of convert- 
ing the devotees of crocodiles or cats. A Briton brought 
up by the Druids, or a Frisian who had worshipped 
Woden in his youth, found, if he was sent to command a 
garrison in Syria, no difficulty in attending a sacrifice to 
the Syrian Sun-god, or in marrying the daughter of the 
Sun-god's priest. Possibly the first injunctions to have 
regard to religion in choosing a consort that were ever 
issued in the ancient world were such as that given by 
St. Paul when he said, ' Be not unequally yoked together 
with unbelievers.' Christianity had a reason for this 
precept which the other religions had not, because to it 
all the other religions were false and pernicious, draw- 
ing men away from the only true God. We may ac- 
cordingly say that, old-established and strong as some 
of the religions were which the Romans found when they 
began to conquer the Mediterranean countries, religion 
did not constitute an obstacle to the fusion of the peo- 
ples of those countries into one Roman nationality. 



ROMAN AND BRITISH EMPIRES 59 

When the Monotheistic religions came upon the scene, 
things began to change. Almost the only rebellions 
against Rome which were rather religious than political, 
were those of the Jews. When in the fourth, fifth, sixth, 
and seventh centuries, sharp theological controversies 
began to divide Christians, especially in the East, 
dangers appeared such as had never arisen from reli- 
gious causes in the days of heathenism. Schisms, like 
that of the Donatists, and heresies, began to trouble 
the field of politics. The Arian Goths and Vandals 
remained distinct from the orthodox provincials whom 
they conquered. In Egypt, a country always prone to 
fanaticism, the Monophysite antagonism to the ortho- 
doxy of the Eastern Emperors was so bitter that the 
native population showed signs of disaffection as early 
as the time of Justinian, and they offered, a century 
later, scarcely any resistance to those Musulman in- 
vaders from Arabia whom they disliked no more than 
they did their own sovereign at Constantinople. 

A fourth agency working for fusion which the Roman 
Empire possessed, and which the English in India want, 
is to be found in language and literature. The con- 
quests of Rome had been preceded by the spread of 
the Greek tongue and of Greek culture over the coasts 
of the Eastern Mediterranean. Even in the interior of 
Asia Minor and Syria, though the native languages 
continued to be spoken in the cities as late as the time 
of Tiberius i , and probably held their ground in country 
districts down till the Arab conquest, Greek was under- 
stood by the richer people, and was a sort of lingua 
franca for commerce from Sicily to the Euphrates 2 . 
Greek literature was the basis of education, and formed 
the minds of the cultivated class. It was indeed familiar 
to that class even in the western half of the Empire, 
through which, by the time of the Antonines, Latin had 

1 As in Lycaonia ; cf. Acts xiv. 

2 There is a curious story that when the head of Crassus was brought to the 
Parthian king a passage from the Bacchae of Euripides was recited by a Greek 
who was at the Court. 



60 ROMAN AND BRITISH EMPIRES 

begun to be generally spoken, except in remote regions 
such as the Basque country and the banks of the Vaal 
and North-Western Gaul. As the process of unifi- 
cation usually works downwards from the wealthier 
and better educated to the masses, it was of the utmost 
consequence that the upper class should have, in these 
two great languages, a factor constantly operative in the 
assimilation of the ideas of peoples originally distinct, 
in the diffusion of knowledge, and in the creation of a 
common type of civilization. Just as the use of Latin 
and of the Vulgate maintained a sort of unity among 
Christian nations and races even in the darkest and most 
turbulent centuries of the Middle Ages, so the use of 
Latin and Greek throughout the whole Roman Empire 
powerfully tended to draw its parts together. Nor was 
it without importance that all the subjects of the Empire 
had the same models of poetic and prose style in the 
classical writers of Greece and in the Latin writers of the 
pre-Augustan and Augustan age. Virgil in particular 
became the national poet of the Empire, in whom impe- 
rial patriotism found its highest expression. 

Very different have been the conditions of India. 
When the British came, they found no national litera- 
ture, unless we can apply that name to the ancient 
Sanskrit epics, written in a tongue which had ceased 
to be spoken many centuries before. Persian and 
Arabic were cultivated languages, used by educated 
Musulmans and by a few Hindu servants of the Musul- 
man princes. The lingua franca called Hindustani or 
Urdu, which had sprung up in the camps of the Mogul 
Emperors, was becoming a means of intercourse over 
Northern India, but was hardly used throughout the 
South. Only a handful of the population were suf- 
ficiently educated to be accessible to the influences 
of any literature, or spoke any tongue except that of 
their own district. At present five great languages 1 , 
branches of the Aryan family, divide between them 

1 Hindi, Bengali, Marathi, Punjabi, and Gujarati. 



ROMAN AND BRITISH EMPIRES 61 

Northern, North-Western, and Middle India, and four 
others 1 of the Dravidian type cover Southern India : 
while many others are spoken by smaller sections of the 
people. The language of the English conquerors, which 
was adopted as the official language in 1835, is the parent 
tongue of only about 250,000 persons out of 287,000,000, 
less than one in one thousand. An increasing number 
of natives of the educated class have learnt to speak it, 
but even if we reckon in these, it affects only the most 
insignificant fraction of the population. I have already 
observed that it was an advantage for England in 
conquering India, and is an advantage for her in ruling 
it, that the inhabitants are so divided by language as well 
as by religion and (among the Hindus) by caste that they 
could not combine to resist her. Rome had enjoyed, in 
slighter measure, a similar advantage. But whereas in 
the Roman Empire Greek and Latin spread so swiftly and 
steadily that the various nationalities soon began to 
blend, the absence in India of any two such dominant 
tongues and the lower level of intellectual progress keep 
the vast bulk of the Indian population without any gene- 
ral vehicle for the interchange of thought or for the for- 
mation of any one type of literary and scientific culture. 
There is therefore no national literature for India, nor 
any prospect that one will arise. No Cicero forms 
prose style, no Virgil inspires an imperial patriotism. 
The English have established places of higher instruc- 
tion on the model not so much of Oxford and Cam- 
bridge as of the Scottish Universities and the new 
University Colleges which have recently sprung up 
in England, together with five examining Universities. 
Through these institutions they are giving to the 
ambitious youth of India, and especially to those who 
wish to enter Government employment or the learned 
professions, an education of a European type, a type 
so remote from the natural quality and proclivities 
of the Indian mind that it is not likely to give birth 

2 Telugu, Tamil, Kanarese, Malayalam. 



62 ROMAN AND BRITISH EMPIRES 

to any literature with a distinctively Indian character. 
Indeed the chief effect of this instruction has so far been 
to make those who receive it cease to be Hindus or 
Musulmans without making them either Christians or 
Europeans. It acts as a powerful solvent, destroying the 
old systems of conventional morality, and putting little 
in their place. The results may not be seen for a gene- 
ration or two. When they come they may prove far 
from happy. 

If in the course of ages any one language comes 
to predominate in India and to be the language not 
only of commerce, law, and administration, but also of 
literature, English is likely to be that language ; and 
English will by that time have also become the leading 
language of the world 1 . This will tend both to unify 
the peoples of India and (in a sense) to bring them 
nearer to their rulers. By that time, however, if it ever 
arrives, so many other changes will also have arrived 
that it is vain to speculate on the type of civilization 
which will then have been produced. 

These considerations have shown us how different 
have been the results of English from those of Roman 
conquest. In the latter case a double process began 
from the first. The provinces became assimilated to 
one another, and Rome became assimilated to them, or 
they to her. As her individuality passed to them it was 
diluted by their influence. Out of the one conquering 
race and the many conquered races there was growing up 
a people which, though many local distinctions remained, 
was by the end of the fourth century a. d. tending to be- 
come substantially one in religion, one in patriotism, one 
in its type of intellectual life and of material civilization. 
The process was never completed, because the end of 
the fourth century was just the time when the Empire 
began, not from any internal dissensions, but from 

1 It is estimated that English is at present spoken by about 115 millions of per- 
sons, Russian by 80 millions, German by 70, Spanish by 50, French by 45. Of 
these English is increasing the most swiftly, Russian next, and then German. 



ROMAN AND BRITISH EMPIRES 63 

financial and military weakness, to yield to invasions and 
immigrations which forced its parts asunder. But it was 
so far completed that Claudian could write in the days 
of Honorius : ' We who drink of the Rhone and the 
Orontes are all one nation.' In this one huge nation 
the city and people of Rome had been merged, their 
original character so obliterated that they could give 
their name to the world. But in India there has been 
neither a fusion of the conquerors and the conquered, 
nor even a fusion of the various conquered races into 
one people. Differences of race, language, and religion 
have prevented the latter fusion : yet it may some day 
come. But a fusion of conquerors and conquered 
seems to be forbidden by climate and by the disparity 
of character and of civilization, as well as by antago- 
nisms of colour and religion. The English are too 
unlike the races of India, or any one of those races, to 
mingle with them, or to come to form, in the sense of 
Claudian's words, one people. 

The nations and tribes that were overcome and 
incorporated by Rome were either the possessors of a 
civilization as old and as advanced as was her own, or 
else, like the Gauls and the Germans, belonged to stocks 
full of intellectual force, capable of receiving her lessons, 
and of rapidly rising to the level of her culture. But the 
races of India were all of them far behind the English 
in material civilization. Some of them were and are 
intellectually backward; others, whose keen intelligence 
and aptitude for learning equals that of Europeans, are 
inferior in energy and strength of will. Yet even these 
differences might not render an ultimate fusion impos- 
sible. It is religion and colour that seem to place that 
result beyond any horizon to which our eyes can reach. 
The semi-barbarous races of Southern Siberia will 
become Russians. The Georgians and Armenians of 
Transcaucasia, unless their attachment to their national 
churches saves them, may become Russians. Even the 
Turkmans of the Khanates will be Russians one day, as 



64 ROMAN AND BRITISH EMPIRES 

the Tatars of Kazan and the Crimea are already on the 
way to become. But the English seem destined to re- 
main quite distinct from the natives of India, neither 
mingling their blood nor imparting their character and 
habits. 

So too, it may be conjectured, there will not be, for 
ages to come, any fusion of Americans with the races 
of the Philippine Isles. 

The observation that Rome effaced herself in giving 
her name and laws to the world suggests an inquiry 
into what may be called the retroactive influence of India 
upon England. In the annals of Rome, war, conquest, 
and territorial expansion pervade and govern the whole 
story. Her constitutional, her social, her economic 
history, from the end of the Samnite wars onwards, is 
substantially determined by her position as a ruling 
State, first in Italy and then in the Mediterranean world. 
It was the influence upon the City of the phenomena 
of her rule in the provinces that did most to destroy 
not only the old constitution but the old simple and 
upright character of the Roman people. The pro- 
vinces avenged themselves upon their conquerors. In 
the end, Rome ceases to have any history of her own, 
except an architectural history, so completely is she 
merged in her Empire. To a great extent this is true 
of Italy as well as of Rome. Italy, which had subjected 
so many provinces, ends by becoming herself a province 
— a province no more important than the others, except 
in respect of the reverence that surrounded her name. 
Her history, from the time of Augustus till that of 
Odovaker and Theodorich the Ostrogoth, is only a part 
of the history of the Empire. Quite otherwise with 
England. Though England has founded many colonies, 
sent out vast bodies of emigrants, and conquered wide 
dominions, her domestic history has been, since she 
lost Normandy and Aquitaine, comparatively little 
affected by these frequent wars and this immense ex- 
pansion. One might compose a constitutional history 



ROMAN AND BRITISH EMPIRES 65 

of England, or an economic and industrial history, or an 
ecclesiastical history, or a literary history, or a social his- 
tory, in which only few and slight references would need 
to be made to either the colonies or India. England was 
a great European power before she had any colonies or 
any Indian territories: and she would be a great Euro- 
pean power if all of these transmarine possessions were 
to drop off. Only at a few moments in the century and a 
half since the battle of Plassy have Indian affairs gravely 
affected English politics. Every one remembers Fox's 
India Bill, in 1783, and the trial of Warren Hastings, 
and the way in which the Nabobs seemed for a time to 
be demoralizing society and politics. It was in India 
that the Duke of Wellington first showed his powers. 
It was through the Indian opium trade that England first 
came into collision with China. The notion that Russian 
ambition might become dangerous to the security of 
Britain in India had something to do with the Crimean 
War, and with the subsequent policy towards the Turks 
followed by England down to 1880. The deplorable 
Afghan War of 1878-9 led, more perhaps than anything 
else, to the fall of Lord Beaconsfield's Ministry in 1880. 
Other instances might be added in which Indian ques- 
tions have told upon the foreign policy of Great Britain, 
or have given rise to parliamentary strife ; although, by 
a tacit convention between the two great parties in Eng- 
land, efforts are usually made — and made most wisely — 
to prevent questions of Indian administration from be- 
coming any further than seems absolutely necessary 
matters of party controversy. Yet, if these instances be 
all put together, they are less numerous and momentous 
than might have been expected when one considers the 
magnitude of the stake which Britain holds inJndia. And 
even when we add to these the effect of Indian markets 
upon British trade, and the undeniable influence of the 
possession of India upon the thoughts and aspirations 
of Englishmen, strengthening in them a sense of pride 
and what is called an imperial spirit, we shall still be 
5 



66 ROMAN AND BRITISH EMPIRES 

surprised that the control of this vast territory and of 
a population more than seven times as large as that of 
the United Kingdom has not told more forcibly upon 
Britain, and coloured her history more deeply than 
it has in fact done. Suppose that England had not 
conquered India. Would her domestic development, 
whether constitutional or social, have taken a course 
greatly different from that which it has actually fol- 
lowed ? So far as we can judge, it would not. It has been 
the good fortune of England to stand 'far off from the 
conquered countries, and to have had a population too 
large to suffer sensibly from the moral evils which 
conquest and the influx of wealth bring in their train 1 . 

The remark was made at the outset of this discussion 
that the contact of the English race with native races 
in India, and the process by which the former is giving 
the material civilization, and a tincture of the intellec- 
tual culture of Europe to a group of Asiatic peoples, 
is only part of that contact of European races with 
native races and of that Europeanizing of the latter by 
the former which is going on all over the world. France 
is doing a similar work in North Africa and Madagascar. 
Russia is doing it in Turkistan and on the Amur ; and 
may probably be soon engaged upon it in Manchuria. 
Germany is doing it in tropical Africa. England is 
doing it in Egypt and Borneo and Matabililand. The 
people of the United States are entering upon it in the 
Philippine Islands. Every one of these nations pro- 
fesses to be guided by philanthropic motives in its action. 
But it is not philanthropy that has carried any of them 
into these enterprises, nor is it clear that the result will 
be to increase the sum of human happiness. 

It is in India, however, that the process has been in 
progress for the longest time and on the largest scale. 
Even after a century's experience the results cannot 
be adequately judged, for the country is in a state 

1 The absence of slavery and the existence of Christianity will of course present 
themselves to every one's mind as other factors in differentiating the conditions 
of the modern from those of the Roman world. 



ROMAN AND BRITISH EMPIRES 67 

of transition, with all sorts of new factors, such as rail- 
ways, and newspapers,' and colleges, working as well 
upon the humbler as upon the wealthier sections of the 
people. Three things, however, the career of the Eng- 
lish in India has proved. One is, that it is possible 
for a European race to rule a subject native race on 
principles of strict justice, restraining the natural pro- 
pensity of the stronger to abuse their power. India 
has been, and is, ruled upon such principles. When 
oppression or cruelty is perpetrated, it is not by the 
European official but by his native subordinates, and 
especially by the native police, whose delinquencies the 
European official cannot always discover. Scorn or 
insolence is sometimes displayed towards the natives by 
Europeans, and nothing does more to destroy the good 
effects of just government than such displays of scorn. 
But again, it is seldom the European civil officials, but 
either private persons or occasionally junior officers 
in the army, who are guilty of this abuse of their racial 
superiority. 

The second thing is that a relatively small body of 
European civilians, supported by a relatively small armed 
force, can maintain .peace and order in an immense 
population standing on a lower plane of civilization, and 
itself divided by religious animosities bitter enough to 
cause the outbreak of intestine wars were the restrain- 
ing hand withdrawn. 

The third fact is that the existence of a system securing 
these benefits is compatible with an absolute separation 
between the rulers and the ruled. The chasm between 
them has in these hundred years of intercourse grown 
no narrower. Some even deem it wider, and regret the 
fact that the European official, who now visits England 
more easily and frequently, does not identify himself 
so thoroughly with India as did his predecessors some 
seventy years ago. As one of the greatest problems of 
this age, and of the age which will follow, is and must be 
the relation between the European races as a whole on 



68 ROMAN AND BRITISH EMPIRES 

the one hand, and the more backward races of a different 
colour on the other hand, this incompatibility of temper, 
this indisposition to be fused, or, one may almost say, 
this impracticability of fusion, is a momentous result, 
full of significance for the future. It was quite otherwise 
with that first effort of humanity to draw itself together, 
which took shape in the fusion of the races that Rome 
conquered, and the creation of one Greco-Roman type 
of civilization for them. But the conditions of that small 
ancient world were very different from those by which 
mankind finds itself now confronted. 

It is impossible to think of the future and to recall that 
first impluse towards the unity of mankind which closed 
fourteen centuries ago, without reverting once more 
to the Roman Empire, and asking whether the events 
which caused, and the circumstances which accompanied, 
its dissolution throw any light on the probable fate of 
British dominion in the East. 

Empires die sometimes by violence and sometimes 
by disease. Frequently they die from a combination of 
the two, that is to say, some chronic disease so reduces 
their vitality that a small amount of external violence 
suffices to extinguish the waning life. It was so with the 
dominion of Rome. To outward appearance it was the 
irruption of the barbarians from the north that tore away 
the provinces in the west, as it was the assault of the 
Turks in 1453 that gave the last death blow to the 
feeble and narrowed Empire which had lingered on 
in the East. But the dissolution and dismemberment 
of the western Roman Empire, beginning with the 
abandonment of Britain in a. d. 411, and ending with the 
establishment of the Lombards in Italy in a. d. 568, 
with the conquest of Africa by the Arab chief Sidi Okba 
in the seventh century, and with the capture of Sicily 
by Musulman fleets in the ninth, were really due to 
internal causes which had been for a long time at 
work. In some provinces at least the administration 
had become inefficient or corrupt, and the humbler 



ROMAN AND BRITISH EMPIRES 69 

classes were oppressed by the more powerful. The 
population had in many regions been diminished. In 
nearly all it had become unwarlike, so that barbarian 
levies, raised on the frontier, had taken the place of 
native troops. The revenue was unequal to the task of 
maintaining an army sufficient for defence. How far 
the financial straits to which the government was re- 
duced were due to the exhaustion of the soil, how far 
to maladministration is not altogether easy to determine. 
They had doubtless been aggravated by the disorders 
and invasions of a. d. 260-282. Neither can we tell 
whether the intellectual capacity of the ruling class and 
the physical vigour of the bulk of the population may not 
have declined. But it seems pretty clear that the armies 
and the revenue that were at the disposal of Trajan 
would have been sufficient to defend the Empire three 
centuries later, when the first fatal blows were struck ; 
and we may therefore say that it was really from internal 
maladies, from anaemia or atrophy, from the want of 
men and the want of money, perhaps also from the 
want of wisdom, rather than from the appearance of 
more formidable foes, that the Empire perished in the 
West. 

British power in India shows no similar signs of 
weakness, for though the establishment of internal 
peace is beginning to make it less easy to recruit the 
native army with first-class fighting-men, such as the 
Punjab used to furnish, it has been hitherto found 
possible to keep that army up to its old standard of 
numbers and efficiency. Still the warning Rome has 
bequeathed is a warning not to be neglected. Her great 
difficulty was finance and the impoverishment of the 
cultivator. Finance and the poverty of the cultivator, 
who is always in danger of famine, and is taxed to the 
full measure of his capacity — these are the standing 
difficulties of Indian administration ; and they do not 
grow less, for, as population increases, the struggle for 
food is more severe, and the expenditure on frontier 



TO ROMAN AND BRITISH EMPIRES 

defence, including strategic railways, has gone on rapidly 
increasing. 

As England seems to be quite as safe from rebellion 
within India as was Rome within her Empire, so is she 
stronger against external foes than Rome was, for she 
has far more defensible frontiers, viz. the sea which 
she commands, and a tremendous mountain barrier in 
whose barren gorges a comparatively small force might 
repel invaders coming from a distance and obliged to 
carry their food with them. There is really, so far as 
can be seen at present, only one danger against which 
the English have to guard, that of provoking discontent 
among their subjects by laying on them too heavy a 
burden of taxation. It has been suggested that when 
the differences of caste and religion which now separate 
the peoples of India from one another have begun to 
disappear, when European civilization has drawn them 
together into one people, and European ideas have 
created a large class of educated and restless natives 
ill disposed to brook subjection to an alien race, new 
dangers may arise to threaten the permanence of British 
power. Such possibilities, however, belong to a future 
which is still far distant. 

It is, of course, upon England in the last resort that 
the defence of India rests. The task is well within her 
strength, though serious enough to make it fitting that 
a prudent and pacific spirit should guide her whole 
foreign and colonial policy, that she should neither em- 
bark on needless wars nor lay on herself the burden 
of holding down disaffected subjects. 

England must be prepared to command the sea, and 
to spare 80,000 of her soldiers to garrison the country. 
Were she ever to find herself unable to do this, what 
would become of India? Its political unity, which de- 
pends entirely on the English Raj, would vanish like 
a morning mist. Wars would break out, Avars of am- 
bition, or plunder, or religion, which might end in the 
ascendency of a few adventurers, not necessarily belong- 



ROMAN AND BRITISH EMPIRES 71 

ing to the reigning native dynasties, but probably either 
Pathans, or Sikhs, or Musulmans of the north-west. 
The Marathas might rise in the West. The Nepalese 
might descend upon Bengal. Or perhaps the country 
would, after an interval of chaos, pass into the hands 
of some other European Power. To India severance 
from England would mean confusion, bloodshed, and 
pillage. To England however, apart from the par- 
ticular events which might have caused the snapping 
of the tie, and apart from the possible loss of a market, 
severance from India need involve no lasting injury. 
To be mistress of a vast country whose resources for 
defence need to be supplemented by her own, adds 
indeed to her fame, but does not add to 'her strength. 
England was great and powerful before she owned 
a yard of land there, and might be great and powerful 
again with no more foothold in the East than would 
be needed for the naval fortresses which protect her 
commerce. 

Happily, questions such as these are for the moment 
purely speculative. 



II 

THE EXTENSION OF ROMAN AND 

ENGLISH LAW THROUGHOUT 

THE WORLD 

I. The Regions covered by Roman and English Law. 

From a general comparison of Rome and England as 
powers conquering and administering territories beyond 
their original limits, it is natural to pass on to consider 
one particular department of the work which territorial 
extension has led them to undertake, viz. their action as 
makers of a law which has spread far out over the 
world. Both nations have built up legal systems which 
are now — for the Roman law has survived the Roman 
Empire, and is full of vitality to-day — in force over 
immense areas that were unknown to those who laid 
the foundations of both systems. In this respect Rome 
and England stand alone among nations, unless we 
reckon in the law of Islam which, being a part of the 
religion of Islam, governs Musulmans wherever Musul- 
mans are to be found. 

Roman law, more or less modified by national or 
local family customs or land customs and by modern 
legislation, prevails to-day in all the European countries 
which formed part either of the ancient or of the 
mediaeval Roman Empire, that is to say, in Italy, in 
Greece and the rest of South-Eastern Europe (so far 
as the Christian part of the population is concerned), 



ROMAN AND ENGLISH LAW 73 

in Spain, Portugal, Switzerland, France, Germany (in- 
cluding the German and Slavonic parts of the Austro- 
Hungarian monarchy), Belgium, Holland. The only 
exception is South Britain, which lost its Roman law 
with the coming of the Angles and Saxons in the fifth 
century. The leading principles of Roman jurisprudence 
prevail also in some other outlying countries which have 
borrowed much of their law from some one or more 
of the countries already named, viz. Denmark, Norway, 
Sweden, Russia, and Hungary. Then come the non- 
European colonies settled by some among the above 
States, such as Louisiana, the Canadian province of 
Quebec, Ceylon, British Guiana, South Africa (all the 
above having been at one time colonies either of France 
or of Holland), German Africa, and French Africa, to- 
gether with the regions which formerly obeyed Spain 
or Portugal, including Mexico, Central America, South 
America, and the Philippine Islands. Add to these the 
Dutch and French East Indies, and Siberia. There is 
also Scotland, which has since the establishment of the 
Court of Session by King James the Fifth in 1532 built 
up its law out of Roman Civil and (to some slight extent) 
Roman Canon Law l . 

English law is in force not only in England, Wales, 
and Ireland but also in most of the British colonies. 
Quebec, Ceylon, Mauritius, South Africa, and some few 
of the West Indian islands follow the Roman law 2 . The 
rest, including Australia, New Zealand, and all Canada 
except Quebec, follow English ; as does also the United 
States, except Louisiana, but with the Hawaiian Islands, 
and India, though in India, as we shall see, native law 
is also administered. 

1 There is scarcely a trace of Celtic custom in modern Scottish law. The law 
of land, however, is largely of feudal origin ; and commercial law has latterly been 
influenced by that of England. 

2 In these West Indian islands, however, that which remains of Spanish law, 
as in Trinidad and Tobago, and of French law, as in St. Vincent, is now compara- 
tively slight ; and before long the West Indies (except Cuba and Puerto Rico, 
Guadeloupe and Martinique) will be entirely under English law. See as to the 
British colonies generally, C. P. Ilbert's Legislative Methods and Forms , chap. ix. 



74 ROMAN AND ENGLISH LAW 

Thus between them these two systems cover nearly the 
whole of the civilized, and most of the uncivilized world. 
Only two considerable masses of population stand out- 
side — the Musulman East, that is, Turkey, North Africa, 
Persia, Western Turkistan and Afghanistan, which obey 
the sacred law of Islam, and China, which has customs 
all her own. It is hard to estimate the total number of 
human beings who live under the English common law, 
for one does not know whether to reckon in the semi- 
savage natives of such regions as Uganda, for instance, 
or Fiji. But there are probably one hundred and thirty 
millions of civilized persons (without counting the na- 
tives of India) who do : and the number living under 
some modern form of the Roman law is still larger. 

It is of the process by which two systems which had 
their origin in two small communities, the one an 
Italian city, the other a group of Teutonic tribes, have 
become extended over nine-tenths of the globe that 
I propose to speak in the pages that follow. There are 
analogies between the forms which the process took in 
the two cases. There are also contrasts. The main 
contrast is that whereas we may say that (roughly 
speaking) Rome extended her law by conquest, that is, 
by the spreading of her power, England has extended 
hers by settlement, that is, by the spreading out of her 
race. In India, however, conquest rather than coloniza- 
tion has been the agency employed by England, and it 
is therefore between the extension of English law to 
India and the extension of Roman law to the Roman 
Empire that the best parallel can be drawn. It need 
hardly be added that the Roman law has been far more 
changed in descending to the modern world and becom- 
ing adapted to modern conditions of life than the law 
of England has been in its extension over new areas. 
That extension is an affair of the last three centuries 
only, and the whole history of English law is of only 
some eleven centuries reckoning from Kings Ine and 
Alfred, let us say, to a. d. 1900, or of eight, if we begin 



ROMAN AND ENGLISH LAW 75 

with King Henry the Second, whereas that of Roman 
law covers twenty-five centuries, of which all but the first 
three have witnessed the process of extension, so early 
did Rome begin to impose her law upon her subjects. 
To the changes, however, which have passed on the 
substance of the law we shall return presently. Let us 
begin by examining the causes and circumstances which 
induced the extension to the whole ancient world of 
rules and doctrines that had grown up in a small city. 

II. The Diffusion of Roman Law by Conquest. 

The first conquests of Rome were made in Italy. 
They did not, however, involve any legal changes, for 
conquest meant merely the reduction of what had been 
an independent city or group of cities or tribes to 
vassalage, with the obligation of sending troops to serve 
in the Roman armies. Local autonomy was not (as 
a rule) interfered with ; and such autonomy included 
civil jurisdiction, so the Italic and Greco-Italic cities con- 
tinued to be governed by their own laws, which in the 
case at least of Oscan and Umbrian communities usually 
resembled that of Rome, and which of course tended to 
become assimilated to it even before Roman citizenship 
was extended to the Italian allies. With the annexa- 
tion of part of Sicily in a. d. 230 the first provincial 
government was set up, and the legal and administrative 
problems which Rome had to deal with began to show 
themselves. Other provinces were added in pretty 
rapid succession, the last being Britain (invaded under 
Claudius in a. d. 43). Now although in all these pro- 
vinces the Romans had to maintain order, to collect 
revenue and to dispense justice, the conditions under 
which these things, and especially the dispensing of 
justice, had to be done differed much in different pro- 
vinces Some, such as Sicily, Achaia, Macedonia and 
the provinces of Western Asia Minor, as well as Africa 
(*. e. such parts of that province as Carthage had per-. 



76 ROMAN AND ENGLISH LAW 

meated), were civilized countries, where law-courts al- 
ready existed in the cities 1 . The laws had doubtless 
almost everywhere been created by custom, for the so- 
called Codes we hear of in Greek cities were often 
rather in the nature of political constitutions and penal 
enactments than summarized statements of the whole 
private law ; yet in some cities, the customs had been so 
summarized 2 . Other provinces, such as those of Thrace, 
Transalpine Gaul, Spain, and Britain, were in a lower 
stage of social organization, and possessed, when they 
were conquered, not so much regular laws as tribal 
usages, suited to their rude inhabitants. In the former 
set of cases not much new law was needed. In the 
latter set the native customs could not meet the needs of 
communities which soon began to advance in wealth and 
culture under Roman rule, so law had to be created. 

There were also in all these provinces two classes 
of inhabitants. One consisted of those who enjoyed 
Roman citizenship, not merely men of Italian birth 
settled there but also men to whom citizenship had 
been granted (as for instance when they retired from 
military service), or the natives of cities on which (as to 
Tarsus in Cilicia, St. Paul's birthplace) citizenship had 
been conferred as a boon 3 . This was a large class, and 
went on rapidly increasing. To it pure Roman law 
was applicable, subject of course to any local customs. 

The other class consisted, of the provincial subjects 
who were merely subjects, and, in the view of the 
Roman law, aliens (peregrini). They had their own laws 

1 Cicero says of Sicily, ' Siculi hoc iure sunt ut quod civis cum cive agat, domi 
certet suis legibus ; quod Siculus cum Siculo non eiusdem civitatis, ut de eo praetor 
iudices sortiatur' ; In Verrem, ii. 13, 32. 

2 The laws of Gortyn in Crete, recently published from an inscription dis- 
covered there, apparently of about 500 b. c, are a remarkable instance. Though 
not a complete code, they cover large parts of the field of law. 

3 When I speak of citizenship, it is not necessarily or generally political citizen- 
ship that is to be understood, but the citizenship which carried with it private 
civil rights (those rights which the Romans call connubium and commercium), in- 
cluding Roman family and inheritance law and Roman contract and property 
law. Not only the civilized Spaniards but the bulk of the upper class in Greece 
seem to have become citizens by the time of the Antonines. 



ROMAN AND ENGLISH LAW 77 

or tribal customs, and to them Roman law was primarily 
inapplicable, not only because it was novel and un- 
familiar, so strange to their habits that it would have 
been unjust as well as practically inconvenient to have 
applied it to them, but also because the Romans, like the 
other civilized communities of antiquity, had been so 
much accustomed to consider private legal rights as 
necessarily connected with membership of a city com- 
munity that it would have seemed unnatural to apply the 
private law of one city community to the citizens of 
another. It is true that the Romans after a time dis- 
abused their minds of this notion, as indeed they had from 
a comparatively early period extended their own private 
civil rights to many of the cities which had become their 
subject allies. Still it continued to influence them at 
the time (b. c. 230 to 120) when they were laying out 
the lines of their legal policy for the provinces. 

Of that legal policy I must speak quite briefly, partly 
because our knowledge, though it has been enlarged 
of late years by the discovery and collection of a great 
mass of inscriptions, is still imperfect, partly because 
I could not set forth the details without going into a 
number of technical points which might perplex readers 
unacquainted with the Roman law. It is only the main 
lines on which the conquerors proceeded that can be 
here indicated. 

Every province was administered by a governor with 
a staff of subordinate officials, the higher ones Roman, 
and (under the Republic) remaining in office only so 
long as did the governor. The governor was the 
head of the judicial as well as the military and civil ad- 
ministration, just as the consuls at Rome originally 
possessed judicial as well as military and civil powers, 
and just as the praetor at Rome, though usually occupied 
with judicial work, had also both military and civil autho- 
rity. The governor's court was the proper tribunal for 
those persons who in the provinces enjoyed Roman 
citizenship, and in it Roman law was applied to such 



78 ROMAN AND ENGLISH LAW 

persons in matters touching their family relations, their 
rights of inheritance, their contractual relations with one 
another, just as English law is applied to Englishmen 
in Cyprus or Hong Kong. No special law was needed 
for them. As regards the provincials, they lived under 
their own law, whatever it might be, subject to one im- 
portant modification. Every governor when he entered 
his province issued an Edict setting forth certain rules 
which he proposed to apply during his term of office. 
These rules were to be valid only during his term, for 
his successor issued a fresh Edict, but in all probability 
each reproduced nearly all of what the preceding Edict 
had contained. Thus the same general rules remained 
continuously in force, though they might be modified in 
detail, improvements which experience had shown to be 
necessary being from time to time introduced 1 . This 
was the method which the praetors followed at Rome, 
so the provincial governors had a precedent for it and 
knew how to work it. Now the Edict seems to have 
contained, besides its provisions regarding the collection 
of revenue and civil administration in general, certain 
more specifically legal regulations, intended to indicate 
the action which the governor's court would take not 
only in disputes arising between Roman citizens, but 
also in those between citizens and aliens, and probably 
also to some extent in those between aliens them- 
selves. Where the provisions of the Edict did not 
apply, aliens would be governed by their own law. 
In cities municipally organized, and especially in the 
more civilized provinces, the local city courts would 
doubtless continue to administer, as they had done 
before the Romans came, their local civil law; and in 
the so-called free cities, which had come into the Empire 
as allies, these local courts had for a long time a wide 
scope for their action. Criminal law, however, would 
seem to have fallen within the governor's jurisdiction, 
at any rate in most places and for the graver offences, 

1 As to this see Essay XIV, p. 692 sqq. 



ROMAN AND ENGLISH LAW 79 

because criminal law is the indispensable guarantee 
for public order and for the repression of sedition 
or conspiracy, matters for which the governor was of 
course responsible 1 . Thus the governor's court was 
not only that which dispensed justice between Roman 
citizens, and which dealt with questions of revenue, but 
was also the tribunal for cases between citizens and 
aliens, and for the graver criminal proceedings. It was 
apparently also a court which entertained some kinds 
of suits between aliens, as for instance between aliens 
belonging to different cities, or in districts where no 
regular municipal courts existed, and (probably) dealt 
with appeals from those courts where they did exist. 
Moreover where aliens even of the same city chose to 
resort to it they could apparently do so. I speak of 
courts rather than of law, because it must be remem- 
bered that although we are naturally inclined to think 
of law as coming first, and courts being afterwards 
created to administer law, it is really courts that come 
first, and that by their action build up law partly out 
of customs observed by the people and partly out of 
their own notions of justice. This, which is generally 
true of all countries, is of course specially true of coun- 
tries where law is still imperfectly developed, and of 
places where different classes of persons, not governed 
by the same legal rules, have to be dealt with. 

The Romans brought some experience to the task 
of creating a judicial administration in the provinces, 
where both citizens and aliens had to be considered, for 
Rome herself had become, before she began to acquire 
territories outside Italy, a place of residence or resort 
for alien traders, so that as early as b. c. 247 she created 
a magistrate whose special function it became to handle 
suits between aliens, or in which one party was an 
alien. This magistrate built up, on the basis of mer- 

1 In St. Paul's time, however, the Athenian Areopagus would seem to have re- 
tained its jurisdiction ; cf. Acts xvii. 19. The Romans treated Athens with special 
consideration. 



80 ROMAN AND ENGLISH LAW 

cantile usage, equity, and common sense, a body of 
rules fit to be applied between persons whose native 
law was not the same; and the method he followed 
would naturally form a precedent for the courts of the 
provincial governors. 

Doubtless the chief aim, as well as the recognized 
duty, of the governors was to disturb provincial usage 
as little as they well could. The temptations to which 
they were exposed, and to which they often succumbed, 
did not lie in the direction of revolutionizing local law 
in order to introduce either purely Roman doctrines 
or any artificial uniformity 1 . They would have made 
trouble for themselves had they attempted this. And 
why should they attempt it ? The ambitious governors 
desired military fame. The bad ones wanted money. 
The better men, such as Cicero, and in later days 
Pliny, liked to be feted by the provincials and have 
statues erected to them by grateful cities. No one 
of these objects was to be attained by introducing legal 
reforms which theory might suggest to a philosophic 
statesman, but which nobody asked for. It seems safe 
to assume from what we know of official human nature 
elsewhere, that the Roman officials took the line of least 
resistance compatible with the raising of money and 
the maintenance of order. These things being secured, 
they would be content to let other things alone. 

Things, however, have a way of moving even when 
officials may wish to let them rest. When a new and 
vigorous influence is brought into a mixture of races 
receptive rather than resistent (as happened in Asia 
Minor under the Romans), or when a higher culture 
acts through government upon a people less advanced 
but not less naturally gifted (as happened in Gaul under 
the Romans), changes must follow in law as well as in 
other departments of human action. Here two forces 

1 One of the charges against Verres was that he disregarded all kinds of law 
alike. Under him, says Cicero, the Sicilians ' neque suas leges neque nostra sena- 
tus consulta neque communia iura tenuerunt ' ; In Verr. i. 4, 13. 



ROMAN AND ENGLISH LAW 81 

were at work. One was the increasing number of per- 
sons who were Roman citizens, and therefore lived by 
the Roman law. The other was the increasing tendency 
of the government to pervade and direct the whole public 
life of the province. When monarchy became established 
as the settled form of the Roman government, pro- 
vincial administration began to be better organized, and 
a regular body of bureaucratic officials presently grew up. 
The jurisdiction of the governor's court extended itself, 
and was supplemented in course of time by lower courts 
administering law according to the same rules. The law 
applied to disputes arising between citizens and non- 
citizens became more copious and definite. The pro- 
vincial Edicts expanded and became well settled as 
respects the larger part of their contents. So by 
degrees the law of the provinces was imperceptibly 
Romanized in its general spirit and leading conceptions, 
probably also in such particular departments as the 
original local law of the particular province had not 
fully covered. But the process did not proceed at the 
same rate in all the provinces, nor did it result in a uni- 
form legal product, for a good deal of local customary 
law remained, and this customary law of course differed 
in different provinces. In the Hellenic and Hellenized 
countries the pre-existing law was naturally fuller and 
stronger than in the West ; and it held its ground more 
effectively than the ruder usages of Gauls or Spaniards, 
obtaining moreover a greater respect from the Romans, 
who felt their intellectual debt to the Greeks. 

It may be asked what direct legislation there was 
during this period for the provinces. Did the Roman 
Assembly either pass statutes for them, as Parliament 
has sometimes done for India, or did the Assembly 
establish in each province some legislative authority ? 
So far as private law went Rome did neither during 
the republican period 1 . The necessity was not felt, 

1 The Lex Sempronia mentioned by Livy, xxxv. 7, seems to be an exception, 
due to very special circumstances. 

6 



82 ROMAN AND ENGLISH LAW 

because any alterations made in Roman law proper 
altered it for Roman citizens who dwelt in the pro- 
vinces no less than for those in Italy, while as to pro- 
vincial aliens, the Edict of the governor and the rules 
which the practice of his courts established were suffi- 
cient to introduce any needed changes. But the Senate 
issued decrees intended to operate in the provinces, 
and when the Emperors began to send instructions to 
their provincial governors or to issue declarations of 
their will in any other form, these had the force of law, 
and constituted a body of legislation, part of which was 
general, while part was special to the province for which 
it was issued. 

Meantime — and I am now speaking particularly of 
the three decisively formative centuries from b. c. 150 
to a. d. 150 — another process had been going on even 
more important. The Roman law itself had been 
changing its character, had been developing from a 
rigid and highly technical system, archaic in its forms 
and harsh in its rules, preferring the letter to the spirit, 
and insisting on the strict observance of set phrases, into 
a liberal and elastic system, pervaded by the principles 
of equity and serving the practical convenience of a 
cultivated and commercial community. The nature of 
this process will be found described in other parts of 
this volume 1 . Its result was to permeate the original 
law of Rome applicable to citizens only (ius civile) with 
the law which had been constructed for the sake of deal- 
ing with aliens (ius gentium), so that the product was a 
body of rules fit to be used by any civilized people, as 
being grounded in reason and utility, while at the same 
time both copious in quantity and refined in quality. 

This result had been reached about a. d. 150, by which 
time the laws of the several provinces had also been 
largely Romanized. Thus each body of law — if we 
may venture for this purpose to speak of provincial law 
as a whole — had been drawing nearer to the other. 

1 See Essay XI, and Essay XIV, p. 706. 



ROMAN AND ENGLISH LAW 83 

The old law of the city of Rome had been expanded 
and improved till it was fit to be applied to the pro- 
vinces. The various laws of the various provinces had 
been constantly absorbing the law of the city in the 
enlarged and improved form latterly given to it. Thus 
when at last the time for a complete fusion arrived 
the differences between the two had been so much re- 
duced that the fusion took place easily and naturally, 
with comparatively little disturbance of the state of 
things already in existence. One sometimes finds on 
the southern side of the Alps two streams running in 
neighbouring valleys. One which has issued from a 
glacier slowly deposits as it flows over a rocky bed 
the white mud which it brought from its icy cradle. 
The other which rose from clear springs gradually 
gathers colouring matter as in its lower course it cuts 
through softer strata or through alluvium. When at last 
they meet, the glacier torrent has become so nearly 
clear that the tint of its waters is scarcely distinguishable 
from that of the originally bright but now slightly turbid 
affluent. Thus Roman and provincial law, starting from 
different points but pursuing a course in which their 
diversities were constantly reduced, would seem to have 
become so similar by the end of the second century 
a. d. that there were few marked divergences, so far as 
private civil rights and remedies were concerned, be- 
tween the position of citizens and that of aliens. 

Here, however, let a difference be noted. The power 
of assimilation was more complete in some branches 
of law than it was in others ; and it was least com- 
plete in matters where old standing features of national 
character and feeling were present. In the Law of 
Property and Contract it had advanced so far as to 
have become, with some few exceptions 1 , substantially 
identical. The same may be said of Penal Law and 
the system of legal procedure. But in the Law of 

1 Such as the technical peculiarities of the Roman stipulation and the Greek 
syngraphe. 



84 ROMAN AND ENGLISH LAW 

Family Relations and in that of Inheritance, a matter 
closely connected with family relations, the dissimi- 
larities were still significant ; and we shall find this 
phenomenon reappearing in the history of English and 
Native Law in India. 

Two influences which I have not yet dwelt upon had 
been, during the second century, furthering the assimi- 
lation. One was the direct legislation of the Emperor 
which, scanty during the first age of the monarchy, had 
now become more copious, and most of which was 
intended to operate upon citizens and aliens alike. The 
other was the action of the Emperor as supreme judicial 
authority, sometimes in matters brought directly before 
him for decision, more frequently as judge of appeals 
from inferior tribunals. He had a council called the 
Consistory which acted on his behalf, because, especially 
in the troublous times which began after the reign of 
Marcus Aurelius and presaged the ultimate dissolution 
of the Empire, the sovereign was seldom able to pre- 
side in person. The judgements of the Consistory, being 
delivered in the Emperor's name as his, and having 
equal authority with statutes issued by him, must have 
done much to make law uniform in all the provinces and 
among all classes of subjects 1 . 

III. The Establishment of One Law for the 

Empire. 

Finally, in the beginning of the third century a. d., the 
decisive step was taken. The distinction between citi- 
zens and aliens vanished by the grant of full citizen- 
ship to all subjects of the Empire, a grant however 
which may have been, in the first instance, applied 
only to organized communities, and not also to the 
backward sections of the rural population, in Corsica, 

1 These decreta of the Emperor were reckoned among- his Constitutiones (as to 
which see Essay XIV, p. 720 sqq.). There does not seem to have been any public 
record kept and published of them, but many of them would doubtless become 
diffused through the law schools and otherwise. The first regular collections of 
imperial constitutions known to us belong to a later time. 



ROMAN AND ENGLISH LAW 85 

for instance, or in some of the Alpine valleys. Our 
information as to the era to which this famous Edict 
of Caracalla's belongs is lamentably scanty. Gaius, who 
is the best authority for the middle period of the law, 
lived fifty or sixty years earlier. The compilers of 
Justinian's Digest, which is the chief source of our 
knowledge for the law as a whole, lived three hundred 
years later, when the old distinctions between the legal 
rights of citizens and those of aliens had become mere 
matters of antiquarian curiosity. These compilers there- 
fore modified the passages of the older jurists which 
they inserted in the Digest so as to make them suit their 
own more recent time. As practical men they were right, 
but they have lessened the historical value of these 
fragments of the older jurists, just as the modern restorer 
of a church spoils it for the purposes of architectural 
history, when he alters it to suit his own ideas of 
beauty or convenience. Still it may fairly be assumed 
that when Caracalla's grant of citizenship was made the 
bulk of the people, or at least of the town dwellers, had 
already obtained either a complete or an incomplete 
citizenship in the more advanced provinces, and that 
those who had not were at any rate enjoying under the 
provincial Edicts most of the civil rights that had previ- 
ously been confined to citizens, such for instance as the 
use of the so-called Praetorian Will with its seven seals. 
How far the pre-exisiing local law of different pro- 
vinces or districts was superseded at one stroke by 
this extension of citizenship, or in other words, what 
direct and immediate change was effected in the modes 
of jurisdiction and in the personal relations of private 
persons, is a question which we have not the means of 
answering. Apparently many difficulties arose which 
further legislation, not always consistent, was required 
to deal with 1 . One would naturally suppose that where 

1 See upon this subject the learned and acute treatise (by which I have been 
much aided) of Dr. L. Mitteis, Reichsrecht und Volksrecht in den ostlichen Pro- 
vinzen des Romischen Kaiserreichs, Chap. VI. 



86 ROMAN AND ENGLISH LAW 

Roman rules differed materially from those which a 
provincial community had followed, the latter could not 
have been suddenly substituted for the former. 

A point, for instance, about which we should like 
to be better informed is whether the Roman rules 
which gave to the father his wide power over his chil- 
dren and their children were forthwith extended to pro- 
vincial families. The Romans themselves looked upon 
this paternal power as an institution peculiar to them- 
selves. To us moderns, and especially to Englishmen 
and Americans, it seems so oppressive that we cannot 
but suppose it was different in practice from what it 
looks on paper. And although it had lost some of its old 
severity by the time of the Antonines, one would think 
that communities which had not grown up under it 
could hardly receive it with pleasure. 

From the time of Caracalla (a. d. 211-217) down till 
the death of Theodosius the Great (a. d. 395) the Empire 
had but one law. There was doubtless a certain amount 
of special legislation for particular provinces, and a 
good deal of customary law peculiar to certain provinces 
or parts of them. Although before the time of Justinian 
it would seem that every Roman subject, except the 
half-barbarous peoples on the frontiers, such as the 
Soanes and Abkhasians of the Caucasus or the Ethiopic 
tribes of Nubia, and except a very small class of freed- 
men, was in the enjoyment of Roman citizenship, with 
private rights substantially the same, yet it is clear 
that in the East some Roman principles and maxims 
were never fully comprehended by the mass of the in- 
habitants and their legal advisers of the humbler sort, 
while other principles did not succeed in displacing 
altogether the rules to which the people were attached. 
We have evidence in recently recovered fragments of 
an apparently widely used law-book, Syriac and Arme- 
nian copies of which remain, that this was the case in the 
Eastern provinces, and no doubt it was so in others also. 
In Egypt, for instance, it may be gathered from the 



ROMAN AND ENGLISH LAW 87 

fragments of papyri which are now being published, 
that the old native customs, overlaid or re-moulded to 
some extent by Greek law, held their ground even down 
to the sixth or seventh century 1 . Still, after making 
all allowance for these provincial variations, philosophic 
jurisprudence and a levelling despotism had done their 
work, and given to the civilized world, for the first and 
last time in its history, one harmonious body of legal 
rules. 

The causes which enabled the Romans to achieve 
this result were, broadly speaking, the five following: — 

(i) There was no pre-existing body of law deeply 
rooted and strong enough to offer resistance to the 
spread of Roman law. Where any highly developed sys- 
tem of written rules or customs existed, it existed only 
in cities, such as those of the Greek or Graecized pro- 
vinces on both sides of the Aegean. The large countries, 
Pontus, for instance, or Macedonia or Gaul, were in a 
legal sense unorganized or backward. Thus the Romans 
had, if not a blank sheet to write on, yet no great difficulty 
in overspreading or dealing freely with what they found. 

(2) There were no forms of faith which had so inter- 
laced religious feelings and traditions with the legal 
notions and customs of the people as to give those 
notions and customs a tenacious grip on men's affection. 
Except among the Jews, and to some extent among the 
Egyptians, Rome had no religious force to overcome 
such as Islam and Hinduism present in India. 

(3) The grant of Roman citizenship to a community 
or an individual was a privilege highly valued, because 
it meant a rise in social status and protection against 

1 This is carefully worked out both as to Syria and to Egypt by Dr. Mitteis, op. cit. 
He thinks (pp. 30-33) that the law of the Syrian book, where it departs from pure 
Roman law as we find it in the Corpus Juris, is mainly of Greek origin, though 
with traces of Eastern custom. He also suggests that the opposition, undoubtedly 
strong, of the Eastern Monophysites to the Orthodox Emperors at Constantinople 
may have contributed to make the Easterns cling the closer to their own cus- 
tomary law. The Syrian book belongs to the fifth century a.d., and is therefore 
earlier than Justinian (Bruns und Sachau, Syrisch-romisches Rechtsbuch aus dem 
fiinften Jahrhunderf). 



88 ROMAN AND ENGLISH LAW 

arbitrary treatment by officials. Hence even those who 
might have liked their own law better were glad to part 
with it for the sake of the immunities of a Roman citizen. 

(4) The Roman governor and the Roman officials in 
general had an administrative discretion wider than 
officials enjoy under most modern governments, and 
certainly wider than either a British or an United States 
legislature would delegate to any person. Hence Ro- 
man governors could by their Edicts and their judi- 
cial action mould the law and give it a shape suitable 
to the needs of their province with a freedom of hand- 
ling which facilitated the passage from local law or cus- 
tom to the jurisprudence of the Empire generally. 

(5) Roman law itself, i.e. the law of the city, went on 
expanding and changing, ridding itself of its purely 
national and technical peculiarities, till it became fit to 
be the law of the whole world. This process kept step 
with, and was the natural expression of, the political 
and social assimilation of Rome to the provinces and 
of the provinces to Rome. 

At the death of Theodosius the Great the Roman Em- 
pire was finally divided into an Eastern and a Western 
half; so that thenceforward there were two legislative 
authorities. For the sake of keeping the law as uniform 
as possible, arrangements were made for the transmis- 
sion by each Emperor to the other of such ordinances 
as he might issue, in order that these might be, if 
approved, issued for the other half of the Empire. 
These arrangements, however, were not fully carried 
out : and before long the Western Empire drifted into 
so rough a sea that legislation practically stopped. The 
great Codex of Theodosius the Second (a collection of 
imperial enactments published in a.d. 438) was however 
promulgated in the Western as well as in the Eastern 
part of the Empire, whereas the later Codex and Digest 
of Justinian, published nearly a century later, was en- 
acted only for the East, though presently extended (by 
re-conquest) to Italy, Sicily, and Africa. Parts of the 



ROMAN AND ENGLISH LAW 89 

Theodosian Codex were embodied in the manuals of 
law made for the use of their Roman subjects by some 
of the barbarian kings. It continued to be recognized 
in the Western provinces after the extinction of the 
imperial line in the West in a. d. 476: and was indeed, 
along with the manuals aforesaid, the principal source 
whence during a long period the Roman population 
drew their law in the provinces out of which the king- 
doms of the Franks, Burgundians, and Visigoths were 
formed. 

Then came the torpor of the Dark Ages. 



IV. The Extension of Roman Law after the Fall 
of the Western Empire. 

Upon the later history of the Roman law and its 
diffusion through the modern world I can but briefly 
touch, for I should be led far away from the special topic 
here considered. The process of extension went on in 
some slight measure by conquest, but mainly by peaceful 
means, the less advanced peoples, who had no regular 
legal system of their own, being gradually influenced 
by and learning from their more civilized neighbours to 
whom the Roman system had descended. The light of 
legal knowledge radiated forth from two centres, from 
Constantinople over the Balkanic and Euxine countries 
between the tenth and the fifteenth centuries, from 
Italy over the lands that lay north and west of her 
from the twelfth to the sixteenth century. Thereafter 
it is Germany, Holland, and France that have chiefly 
propagated the imperial law, Germany by her univer- 
sities and writers, France and Holland both through 
their jurists and as colonizing powers. 

In the history of the mediaeval and modern part of 
the process of extension five points or stages of especial 
import may be noted. 

The first is the revival of legal study which began in 



90 ROMAN AXD ENGLISH LAW 

Italy towards the end of the eleventh century a. d., and 
the principal agent in which was the school of Bologna, 
famous for many generations thereafter. From that 
date onward the books of Justinian, which had before 
that time been superseded in the Eastern Empire, were 
lectured and commented on in the universities of Italy, 
France, Spain, England, Germany, and have continued 
to be so till our own day. They formed, except in 
England where from the time of Henry the Third 
onwards they had a powerful and at last a victorious 
rival in the Common Law, the basis of all legal training 
and knowledge. 

The second is the creation of that vast mass of rules 
for the guidance of ecclesiastical matters and courts — 
courts whose jurisdiction was in the Middle Ages far 
wider than it is now — which we call the Canon Law. 
These rules, drawn from the canons of Councils and 
decrees of Popes, began to be systematized during 
the twelfth century, and were first consolidated into 
an ordered body by Pope Gregory the Ninth in the 
middle of the thirteenth 1 . They were so largely based 
on the Roman law that we may describe them as being 
substantially a development of it, partly on a new side, 
partly in a new spirit, and though they competed with 
the civil law of the temporal courts, they also extended 
the intellectual influence of that law. 

The third is the acceptance of the Roman law as 
being of binding authority in countries which had not 
previously owned it, and particularly in Germany and 
Scotland. It was received in Germany because the 
German king (after the time of Otto the Great) was 
deemed to be also Roman Emperor, the legitimate suc- 
cessor of the far-off assemblies and magistrates and 
Emperors of old Rome ; and its diffusion was aided 
by the fact that German lawyers had mostly received 
their legal training at Italian universities. It came in 
gradually as subsidiary to Germanic customs, but the 

1 Other parts were added later. 



ROMAN AND ENGLISH LAW 91 

judges, trained in Italy in the Roman system, required 
the customs to be proved, and so by degrees Roman 
doctrines supplanted them, though less in the Saxon 
districts, where a native law-book, the Sachsenspiegcl, 
had already established its influence. The acceptance 
nowhere went so far as to supersede the whole custo- 
mary law of Germany, whose land-rights, for instance, 
retained their feudal character. The formal declaration 
of the general validity of the Corpus Iuris in Germany 
is usually assigned to the foundation by the Emperor 
Maximilian I, in 1495, of the Imperial Court of Justice 
(Reichskammergericht). As Holland was then still a 
part of the Germanic Empire, as well as of the Bur- 
gundian inheritance, it was the law of Holland also, and 
so has become the law of Java, of Celebes, and of South 
Africa. In Scotland it was adopted at the foundation of 
the Court of Session, on the model of the Parlement of 
Paris, by King James the Fifth. Political antagonism to 
England and political attraction to France, together with 
the influence of the Canonists, naturally determined the 
King and the Court to follow the system which prevailed 
on the European continent. 

The fourth stage is that of codification. In many 
parts of Gaul, though less in Provence and Languedoc, 
the Roman law had gone back into that shape of a body 
of customs from which it had emerged a thousand years 
before ; and in Northern and Middle Gaul some customs, 
especially in matters relating to land, were not Roman. 
At last, under Lewis the Fourteenth, a codifying process 
set in. Comprehensive Ordinances, each covering a 
branch of law, began to be issued from 1667 down to 
1747. These operated throughout France, and, being 
founded on Roman principles, further advanced the 
work, already prosecuted by the jurists, of Romanizing 
the customary law of Northern France. That of South- 
ern France (the pays du droit ecrii) had been more 
specifically Roman, for the South had been less affected 
by Frankish conquest and settlement. The five Codes 



92 ROMAN AND ENGLISH LAW 

promulgated by Napoleon followed in 1803 to 1810 1 . 
Others reproducing them with more or less divergence 
have been enacted in other Romance countries. 

In Prussia, Frederick the Second directed the pre- 
paration of a Code which became law after his death, 
in 1794. From 1848 onwards parts of the law of Ger- 
many (which differed in different parts of the country) 
began to be codified, being at first enacted by the several 
States, each for itself, latterly by the legislature of the 
new Empire. Finally, after twenty-two years of labour, 
a new Code for the whole German Empire was settled, 
was passed by the Chambers, and came into force on the 
first of January, 1900. It does not, however, altogether 
supersede pre-existing local law. This Code, far from 
being pure Roman law, embodies many rules due to 
mediaeval custom (especially custom relating to land- 
rights) modernized to suit modern conditions, and also 
a great deal of post-mediaeval legislation 2 . Some Ger- 
man jurists complain that it is too Teutonic ; others that 
it is not Teutonic enough. One may perhaps conclude 
from these opposite criticisms that the codifiers have 
made a judiciously impartial use of both Germanic and 
Roman materials. 

Speaking broadly, it may be said that the groundwork 
of both the French and the German Codes — that is to 
say their main lines and their fundamental legal con- 
ceptions — is Roman. Just as the character and genius 
of a language are determined by its grammar, irre- 
spective of the number of foreign words it may have 
picked up, so Roman law remains Roman despite the 
accretion of the new elements which the needs of modern 
civilization have required it to accept. 

The fifth stage is the transplantation of Roman law in 

1 Among the States in which the French Code has been taken as a model are 
Belgium, Italy, Spain, Portugal, Mexico, and Chili. See an article by Mr. E. 
Schuster in the Law Quarterly Review for January, 1896. 

2 An interesting sketch of the 'reception' of Roman law in Germany (by Dr. 
Erwin Griiber) may be found in the Introduction to Mr. Ledlie's translation of 
Sohm's Institutionen (1st edition). 



ROMAN AND ENGLISH LAW 93 

its modern forms to new countries. The Spaniards and 
Portuguese, the French, the Dutch, and the Germans 
have carried their respective systems of law with them 
into the territories they have conquered and the colonies 
they have founded; and the law has often remained 
unchanged even when the territory or the colony has 
passed to new rulers. For law is a tenacious plant, 
even harder to extirpate than is language; and new 
rulers have generally had the sense to perceive that they 
had less to gain by substituting their own law for that 
which they found than they had to lose by irritating 
their new subjects. Thus, Roman-French law survives 
in Quebec (except in commercial matters) and in Loui- 
siana, Roman-Dutch law in Guiana and South Africa. 

The cases of Poland, Russia and the Scandinavian 
kingdoms are due to a process different from any of 
those hitherto described. The law of Russia was ori- 
ginally Slavonic custom, influenced to some extent by 
the law of the Eastern Roman Empire, whence Rus- 
sia took her Christianity and her earliest literary im- 
pulse. In its present shape, while retaining in many 
points a genuinely Slavonic character, and of course far 
less distinctly Roman than is the law of France, it has 
drawn so much, especially as regards the principles of 
property rights and contracts, from the Code Napoleon 
and to a less degree from Germany, that it may be 
described as being Roman ' at the second remove,' 
and reckoned as an outlying and half-assimilated pro- 
vince, so to speak, of the legal realm of Rome. Poland, 
lying nearer Germany, and being, as a Catholic country, 
influenced by the Canon Law, as well as by German 
teaching and German books, adopted rather more of 
Roman doctrine than Russia did 1 . Her students learnt 
Roman law first at Italian, afterwards at German Univer- 

1 In Lithuania the rule was that where no express provision could be found 
governing a case, recourse should be had to 'the Christian laws.' Speaking gene- 
rally, one may say that it was by and with Christianity that Roman law made 
its way in the countries to the east of Germany and to the north of the Eastern 
Empire. 



94 ROMAN AND ENGLISH LAW 

sities, and when they became judges, naturally applied its 
principles. The Scandinavian countries set out with a 
law purely Teutonic, and it is chiefly through the German 
Universities and the influence of German juridical litera- 
ture that Roman principles have found their way in and 
coloured the old customs. Servia, Bulgaria and Ru- 
mania, on the other hand, were influenced during the 
Middle Ages by the law of the Eastern Empire, whence 
they drew their religion and their culture. Thus their 
modern law, whose character is due partly to these By- 
zantine influences — of course largely affected by Slavo- 
nic custom — and partly to what they have learnt from 
France and Austria, may also be referred to the Roman 
type. 

V. The Diffusion of English Law. 

England, like Rome, has spread her law over a large 
part of the globe. But the process has been in her 
case not only far shorter but far simpler. The work 
has been (except as respects Ireland) effected within 
the last three centuries ; and it has been effected (except 
as regards Ireland and India) not by conquest but by 
peaceful settlement. This is one of the two points in 
which England stands contrasted with Rome. The other 
is that her own law has not been affected by the process. 
It has changed within the seven centuries that lie be- 
tween King Henry the Second and the present day, al- 
most if not quite as much as the law of Rome changed in 
the seven centuries between the enactment of the Twelve 
Tables and the reign of Caracalla. But these changes 
have not been due, as those I have described in the 
Roman Empire were largely due, to the extension of the 
law of England to new subjects. They would apparently 
have come to pass in the same way and to the same 
extent had the English race remained confined to its 
own island. 

England has extended her law over two classes of 
territories. 



ROMAN AND ENGLISH LAW 95 

The first includes those which have been peacefully 
settled by Englishmen — North America (except Lower 
Canada), Australia, New Zealand, Fiji, the Falkland 
Isles. All of these, except the United States, have re- 
mained politically connected with the British Crown. 

The second includes conquered territories. In some 
of these, such as Wales, Ireland, Gibraltar, the Canadian 
provinces of Ontario and Nova Scotia, and several of 
the West India Islands, English law has been established 
as the only system, applicable to all subjects 1 . In others, 
such as Malta, Cyprus, Singapore, and India, English law 
is applied to Englishmen and native law to natives, the 
two systems being worked concurrently. Among these 
cases, that which presents problems of most interest 
and difficulty is India. But before we consider India, a 
few words may be given to the territories of the former 
class. They are now all of them, except the West 
Indies, Fiji and the Falkland Isles, self-governing, and 
therefore capable of altering their own law. This they do 
pretty freely. The United States have now forty-nine 
legislatures at work, viz. Congress, forty-five States, 
and three Organized Territories. They have turned out 
an immense mass of law since their separation from Eng- 
land. But immense as it is, and bold as are some of the 
experiments which may be found in it, the law of the 
United States remains (except of course in Louisiana) 
substantially English law. An English barrister would 
find himself quite at home in any Federal or State Court, 
and would have nothing new to master, except a few 
technicalities of procedure and the provisions of any 
statutes which might affect the points he had to argue. 
And the patriarch of American teachers of law (Profes- 
sor C. C. Langdell of the Law School in Harvard Univer- 

1 It has undergone little or no change in the process. The Celtic customs dis- 
appeared in Wales ; the Brehon law, though it was contained in many written 
texts and was followed over the larger part of Ireland till the days of the Tudors, 
has left practically no trace in the existing law of Ireland, which is, except as 
respects land, some penal matters, and marriage, virtually identical with the law 
of England, 



96 ROMAN AND ENGLISH LAW 

sity), consistently declining to encumber his expositions 
with references to Federal or State Statutes, continues 
to discourse on the Common Law of America, which 
differs little from the Common Law of England. The 
old Common Law which the settlers carried with them 
in the seventeenth century has of course been developed 
or altered by the decisions of American Courts. These, 
however, have not affected its thoroughly English cha- 
racter. Indeed, the differences between the doctrines 
enounced by the Courts of different States are some- 
times just as great as the differences between the views 
of the Courts of Massachusetts or New Jersey and those 
of Courts in England. 

The same is true of the self-governing British colonies. 
In them also legislation has introduced deviations from 
the law of the mother country. More than forty years 
ago New Zealand, for instance, repealed the Statute of 
Uses, which is the corner-stone of English conveyancing ; 
and the Australian legislatures have altered (among 
other things) the English marriage law. But even if the 
changes made by statute had been far greater than they 
have been, and even if there were not, as there still is, a 
right of appeal from the highest Courts of these colonies 
to the Crown in Council, their law should still remain, 
in all its essential features, a genuine and equally legiti- 
mate offspring of the ancient Common Law. 

We come now to the territories conquered by Eng- 
land, and to which she has given her law whether in 
whole or in part. Among these it is only of India that 
I shall speak, as India presents the phenomena of contact 
between the law of the conqueror and that of the con- 
quered on the largest scale and in the most instructive 
form. What the English have done in India is being 
done or will have to be done, though nowhere else on 
so vast a scale, by the other great nations which have 
undertaken the task of ruling and of bestowing what are 
called the blessings of civilization upon the backward 
races. Russia, France, Germany, and now the United 



ROMAN AND ENGLISH LAW 97 

States also, all see this task before them. To them there- 
fore, as well as to England, the experience of the British 
Government in India may be profitable. 

VI. English Law in India. 

When the English began to conquer India they found 
two great systems of customary law in existence there, 
the Musulman and the Hindu. There were other 
minor bodies of custom, prevailing among particular 
sects, but these may for the present be disregarded. 
Musulman law regulated the life and relations of all 
Musulmans; and parts of it, especially its penal pro- 
visions, were also applied by the Musulman potentates 
to their subjects generally, Hindus included. The 
Musulman law had been most fully worked out in the 
departments of family relations and inheritance, in some 
few branches of the law of contract, such as money loans 
and mortgages and matters relating to sale, and in 
the doctrine of charitable or pious foundations called 
Wakuf. 

In the Hindu principalities, Hindu law was dominant, 
and even where the sovereign was a Musulman, the 
Hindu law of family relations and of inheritance was 
recognized as that by which Hindus lived. There were 
also of course many land customs, varying from district 
to district, which both Hindus and Musulmans observed, 
as they were not in general directly connected with 
religion. In some regions, such as Oudh and what are 
now the North-West provinces, these customs had been 
much affected by the land revenue system of the Mogul 
Emperors. It need hardly be said that where Courts 
of law existed, they administered an exceedingly rough 
and ready kind of justice, or perhaps injustice, for 
bribery and favouritism were everywhere rampant. 

There were also mercantile customs, which were 
generally understood and observed by traders, and 
which, with certain specially Musulman rules recog- 
7 



98 ROMAN AND ENGLISH LAW 

nized in Musulman States, made up what there was of 
a law of contracts. 

Thus one may say that the law (other than purely 
religious law) which the English administrators in the 
days of Clive and Warren Hastings found consisted of — 

First, a large and elaborate system of Inheritance 
and Family Law, the Musulman pretty uniform through- 
out India, though in some regions modified by Hindu 
custom, the Hindu less uniform. Each was utterly 
unlike English law and incapable of being fused with 
it. Each was closely bound up with the religion and 
social habits of the people. Each was contained in 
treatises of more or less antiquity and authority, some 
of the Hindu treatises very ancient and credited with 
almost divine sanction, the Musulman treatises of course 
posterior to the Koran, and consisting of commentaries 
upon that Book and upon the traditions that had grown 
up round it. 

Secondly, a large mass of customs relating to the 
occupation and use of land and of various rights con- 
nected with tillage and pasturage, including water-rights, 
rights of soil-accretion on the banks of rivers, and 
forest-rights. The agricultural system and the revenue 
system of the country rested upon these land customs, 
which were of course mostly unwritten and which varied 
widely in different districts. 

Thirdly, a body of customs, according to our ideas 
comparatively scanty and undeveloped, but still impor- 
tant, relating to the transfer and pledging of property, 
and to contracts, especially commercial contracts. 

Fourthly, certain penal rules drawn from Musulman 
law and more or less enforced by Musulman princes. 

Thus there were considerable branches of law prac- 
tically non-existent. There was hardly any law of civil 
and criminal procedure, because the methods of justice 
were primitive, and would have been cheap, but for the 
prevalence of corruption among judges as well as wit- 
nesses. There was very little of the law of Torts or Civil 



ROMAN AND ENGLISH LAW 99 

Wrongs, and in the law of property of contracts and of 
crimes, some departments were wanting or in a rudimen- 
tary condition. Of a law relating to public and constitu- 
tional rights there could of course be no question, since 
no such rights existed. 

In this state of facts the British officials took the line 
which practical men, having their hands full of other 
work, would naturally take, viz. the line of least re- 
sistance. They accepted and carried on what they found. 
Where there was a native law, they applied it, Musul- 
man law to Musulmans, Hindu law to Hindus, and in 
the few places where they were to be found, Parsi law 
to Parsis, Jain law to Jains. Thus men of every creed 
— for it was creed, not race nor allegiance by which men 
were divided and classified in India — lived each accord- 
ing to his own law, as Burgundians and Franks and 
Romanized Gauls had done in the sixth century in Eu- 
rope. The social fabric was not disturbed, for the land 
customs and the rules of inheritance were respected, 
and of course the minor officers, with whom chiefly the 
peasantry came in contact, continued to be natives. Thus 
the villager scarcely felt that he was passing under the 
dominion of an alien power, professing an alien faith. 
His life flowed on in the same equable course beside the 
little white mosque, or at the edge of the sacred grove. A 
transfer of power from a Hindu to a Musulman sovereign 
would have made more difference to him than did the 
establishment of British rule; and life was more placid 
than it would have been under either a rajah or a sultan, 
for the marauding bands which had been the peasants' 
terror were soon checked by European officers. 

So things remained for more than a generation. So 
indeed things remain still as respects those parts of 
Law which are inwoven with religion, marriage, adop- 
tion (among Hindus) and other family relations, and 
with the succession to property. In all these matters 
native law continues to be administered by the Courts 
the English have set up ; and when cases are appealed 

L.of C. 



100 ROMAN AND ENGLISH LAW 

from the highest of those Courts to the Privy Council 
in England, that respectable body determines the true 
construction to be put on the Koran and the Islamic 
Traditions, or on passages from the mythical Manu, in 
the same business-like way as it would the meaning of 
an Australian statute 1 . Except in some few points to 
be presently noted, the Sacred Law of Islam and that 
of Brahmanism remain unpolluted by European ideas. 
Yet they have not stood unchanged, for the effect of 
the more careful and thorough examination which the 
contents of these two systems have received from advo- 
cates, judges, and text-writers, both native and English, 
imbued with the scientific spirit of Europe, has been 
to clarify and define them, and to develop out of the half- 
fluid material more positive and rigid doctrines than had 
been known before. Something like this may probably 
have been done by the Romans for the local or tribal 
law of their provinces. 

In those departments in which the pre-existing cus- 
toms were not sufficient to constitute a body of law 
large enough and precise enough for a civilized Court 
to work upon, the English found themselves obliged 
to supply the void. This was done in two ways. Some- 
times the Courts boldly applied English law. Sometimes 
they supplemented native custom by common sense, 
i.e. by their own ideas of what was just and fair. The 
phrase ' equity and good conscience ' was used to em- 
body the principles by which judges were to be guided 
when positive rules, statutory or customary, were not 
forthcoming. To a magistrate who knew no law at all, 
these words would mean that he might follow his own 
notions of ' natural justice/ and he would probably give 
more satisfaction to suitors than would his more learned 

1 It is related that a hill tribe of Kols, in Central India, had a dispute with the 
Government of India over some question of forest-rights. The case having- gone 
in their favour, the Government appealed to the Judicial Committee. Shortly 
afterwards a passing traveller found the elders of the tribe assembled at the sacri- 
fice of a kid. He inquired what deity was being propitiated, and was told that it 
was a deity powerful but remote, whose name was Privy Council. 



ROMAN AND ENGLISH LAW 101 

brother, trying to apply confused recollections of Black- 
stone or Chitty. In commercial matters common sense 
would be aided by the usage of traders. In cases of Tort 
native custom was not often available, but as the magi- 
strate who dealt out substantial justice would give what 
the people had rarely obtained from the native courts, 
they had no reason to complain of the change. As 
to rules of evidence, the young Anglo-Indian civilian 
would, if he were wise, forget all the English techni- 
calities he might have learnt, and make the best use 
he could of his mother- wit 1 . 

For the first sixty years or more of British rule there 
was accordingly little or no attempt to Anglify the law 
of India, or indeed to give it any regular and systematic 
form. Such alterations as it underwent were the 
natural result of its being dispensed by Europeans. 
But to this general rule there were two exceptions, 
the law of Procedure and the law of Crimes. Courts 
had been established in the Presidency towns even 
before the era of conquest began. As their business 
increased and subordinate Courts were placed in the 
chief towns of the annexed provinces, the need for some 
regular procedure was felt. An Act of the British 
Parliament of a.d. 1781 empowered the Indian Govern- 
ment to make regulations for the conduct of the pro- 
vincial Courts, as the Court at Fort William (Calcutta) 
had already been authorized to do for itself by an Act 
of 1773. Thus a regular system of procedure, modelled 
after that of England, was established ; and the Act 
of 1781 provided that the rules and forms for the exe- 
cution of process were to be accommodated to the 
religion and manners of the natives. 

As respects penal law, the English began by adopt- 
ing that which the Musulman potentates had been ac- 
customed to apply. But they soon found that many 

♦ 

1 For the facts given in the following pages I am much indebted to the singu- 
larly lucid and useful treatise of Sir C. P. Ilbert (formerly Legal Member of the 
Viceroy's Council) entitled The Government of India. 



102 ROMAN AND ENGLISH LAW 

of its provisions were such as a civilized and nominally 
Christian government could not enforce. Mutilation 
as a punishment for theft, for instance, and stoning 
for sexual offences, were penalties not suited to Euro- 
pean notions ; and still less could the principle be 
admitted that the evidence of a non-Musulman is not 
receivable against one of the Faithful. Accordingly 
a great variety of regulations were passed amending 
the Musulman law of crimes from an English point 
of view. In Calcutta the Supreme Court did not hesi- 
tate to apply English penal law to natives ; and applied 
it to some purpose at a famous crisis in the fortunes of 
Warren Hastings when (in 1775) it hanged Nuncomar 
for forgery under an English statute of 1728, which in 
the opinion of many high authorities of a later time 
had never come into force at all in India. It was inevi- 
table that the English should take criminal jurisdiction 
into their own hands — the Romans had done the same in 
their provinces — and inevitable also that they should 
alter the penal law in conformity with their own ideas. 
But they did so in a very haphazard fashion. The crimi- 
nal law became a patchwork of enactments so con- 
fused that it was the first subject which invited codifica- 
tion in that second epoch of English rule which we are 
now approaching. 

Before entering on this remarkable epoch, one must 
remember that the English in India, still a very small 
though important class, were governed entirely by 
English law. So far as common law and equity went, 
this law was exactly the same as the contemporaneous 
law of England. But it was complicated by the fact that 
a number of Regulations, as they were called, had been 
enacted for India by the local government, that many 
British statutes were not intended to apply and proba- 
bly did not apply to India (though whether they did or 
not was sometimes doubtful), and that a certain number 
of statutes had been enacted by Parliament expressly 
for India. Thus though the law under which the 



ROMAN AND ENGLISH LAW 103 

English lived had not been perceptibly affected by 
Indian customs, it was very confused and troublesome 
to work. That the learning of the judges sent from 
home to sit in the Indian Courts was seldom equal to 
that of the judges in England was not necessarily a dis- 
advantage, for in traversing the jungle of Indian law 
the burden of English case lore would have too much 
impeded the march of justice. 

The first period of English rule, the period of rapid 
territorial extension and of improvised government, may 
be said to have ended with the third Maratha war of 
1817-8. The rule of Lord Amherst and Lord William 
Bentinck (1823-35) was a comparatively tranquil period, 
when internal reforms had their chance, as they had in 
the Roman Empire under Hadrian and Antoninus Pius. 
This was also the period when a spirit of legal reform 
was on foot in England. It was the time when the 
ideas of Bentham had begun to bear fruit, and when 
the work begun by Romilly was being carried on by 
Brougham and others. Both the law applied to English- 
men, and such parts of native law as had been cut 
across, filled up, and half re-shaped by English legal 
notions and. rules, called loudly for simplification and 
reconstruction. 

The era of reconstruction opened with the enactment, 
in the India Charter Act of 1833, of a clause declaring 
that a general judicial system and a general body of 
law ought to be established in India applicable to all 
classes, Europeans as well as natives, and that all laws 
and customs having legal force ought to be ascertained, 
consolidated, and amended. The Act then went on to 
provide for the appointment of a body of experts to 
be called the Indian Law Commission, which was to 
inquire into and report upon the Courts, the procedure 
and the law then existing in India. Of this commis- 
sion Macaulay, appointed in 1833 legal member of the 
Governor-General's Council, was the moving spirit: and 
with it the work of codification began. It prepared 



104 ROMAN AND ENGLISH LAW 

a Penal Code, which however was not passed into law 
until i860, for its activity declined after Macaulay's 
return to England and strong opposition was offered 
to his draft by many of the Indian judges. A second 
Commission was appointed under an Act of 1853, and 
sat in England. It secured the enactment of the Penal 
Code, and of Codes of Civil and of Criminal Procedure. 
A third Commission was created in 1861, and drafted 
other measures. The Government of India demurred 
to some of the proposed changes and evidently thought 
that legislation was being pressed on rather too fast. 
The Commission, displeased at this resistance, resigned 
in 1870; and since then the work of preparing as well 
as of carrying through codifying Acts has mostly been 
done in India. The net result of the sixty-six years 
that have passed since Macaulay set to work in 1834 
is that Acts codifying and amending the law, and de- 
claring it applicable to both Europeans and natives, 
have been passed on the topics following : — 

Crimes (i860). 

Criminal Procedure (1861, 1882, and 1898). 

Civil Procedure (1859 and 1882). 

Evidence (1872). 

Limitation of Actions (1877). 

Specific Relief (1877). 

Probate and Administration (1881). 

Contracts (1872) (but only the general rules of con- 
tract with a few rules on particular parts of the subject). 

Negotiable Instruments (1881) (but subject to native 
customs). 

Besides these, codifying statutes have been passed 
which do not apply (at present) to all India, but only to 
parts of it, or to specified classes of the population, 
on the topics following : — 

Trusts (1882). 

Transfer of Property (1882). 

Succession (1865). 

Easements (1882). 



ROMAN AND ENGLISH LAW 105 

Guardians and Wards (1890). 

These statutes cover a large part of the whole field 
of law, so that the only important departments not yet 
dealt with are those of Torts or Civil Wrongs (on which 
a measure not yet enacted was prepared some years 
ago) ; certain branches of contract law, which it is not 
urgent to systematize because they give rise to lawsuits 
only in the large cities, where the Courts are quite able 
to dispose of them in a satisfactory way ; Family Law, 
which it would be unsafe to meddle with, because the 
domestic customs of Hindus, Musulmans, and Euro- 
peans are entirely different ; and Inheritance, the greater 
part of which is, for the same reason, better left to 
native custom. Some points have, however, been 
covered by the Succession Act already mentioned. 
Thus the Government of India appear to think that they 
have for the present gone as far as they prudently can 
in the way of enacting uniform general laws for all 
classes of persons. Further action might displease 
either the Hindus or the Musulmans, possibly both : 
and though there would be advantages in bringing the 
law of both these sections of the population into a more 
clear and harmonious shape, it would in any case be 
impossible to frame rules which would suit both of 
them, and would also suit the Europeans. Here Religion 
steps in, a force more formidable in rousing opposition 
or disaffection than any which the Romans had to fear. 

In such parts of the law as are not covered by these 
enumerated Acts, Englishmen, Hindus and Musulmans 
continue to live under their respective laws. So do 
Parsis, Sikhs, Buddhists (most numerous in Burma), 
and Jains, save that where there is really no native law 
or custom that can be shown to exist, the judge will 
naturally apply the principles of English law, handling 
them, if he knows how, in an untechnical way. Thus 
beside the new stream of united law which has its source 
in the codifying Acts, the various older streams of law, 
each representing a religion, flow peacefully on. 



106 ROMAN AND ENGLISH LAW 

The question which follows — What has been the ac- 
tion on the other of each of these elements? resolves 
itself into three questions : — 

How far has English Law affected the Native Law 
which remains in force ? 

How far has Native Law affected the English Law 
which is in force ? 

How have the codifying Acts been framed — i.e. are 
they a compromise between the English and the native 
element, or has either predominated and given its colour 
to the whole mass ? 

The answer to the first question is that English 
influence has told but slightly upon those branches of 
native law which had been tolerably complete before 
the British conquest, and which are so interwoven with 
religion that one may almost call them parts of religion. 
The Hindu and Musulman customs which regulate the 
family relations and rights of succession have been pre- 
cisely defined, especially those of the Hindus, which were 
more fluid than the Muslim customs, and were much 
less uniform over the whole country. Trusts have been 
formally legalized, and their obligation rendered stronger. 
Adoption has been regularized and stiffened, for its 
effects had been uncertain in their legal operation. 
Where several doctrines contended, one doctrine has 
been affirmed by the English Courts, especially by the 
Privy Council as ultimate Court of Appeal, and the 
others set aside. Moreover the Hindu law of Wills 
has been in some points supplemented by English 
legislation, and certain customs repugnant to European 
ideas, such as the self-immolation of the widow on the 
husband's funeral pyre, have been abolished. And in 
those parts of law which, though regulated by local 
custom, were not religious, some improvements have 
been effected. The rights of the agricultural tenant have 
been placed on a more secure basis. Forest-rights 
have been ascertained and defined, partly no doubt for 
the sake of the pecuniary interests which the Govern- 



ROMAN AND ENGLISH LAW 107 

ment claims in them, and which the peasantry do not 
always admit. But no attempt has been made to Anglify 
these branches of law as a whole. 

On the other hand, the law applicable to Europeans 
only has been scarcely (if at all) affected by native 
law. It remains exactly what it is in England, except 
in so far as the circumstances of India have called for 
special statutes. 

The third question is as to the contents of those 
parts of the law which are common to Europeans and 
Natives, that is to say, the parts dealt by the codifying 
Acts already enumerated. Here English law has deci- 
sively prevailed. It has prevailed not only because 
it would be impossible to subject Europeans to rules 
emanating from a different and a lower civilization, but 
also because native custom did not supply the requisite 
materials. Englishmen had nothing to learn from na- 
tives as respects procedure or evidence. The native 
mercantile customs did not constitute a system even of 
the general principles of contract, much less had those 
principles been worked out in their details. Accordingly 
the, Contract Code is substantially English, and where 
it differs from the result of English cases, the differences 
are due, not to the influence of native ideas or native 
usage, but to the views of those who prepared the 
Code, and who, thinking the English case-law sus- 
ceptible of improvement, diverged from it here and 
there just as they might have diverged had they been 
preparing a Code to be enacted for England. There 
are, however, some points in which the Penal Code 
shows itself to be a system intended for India. The 
right of self-defence is expressed in wider terms than 
would be used in England, for Macaulay conceived that 
the slackness of the native in protecting himself by force 
made it desirable to depart a little in this respect from 
the English rules. Offences such as dacoity (brigandage 
by robber bands), attempts to bribe judges or witnesses, 
the use of torture by policemen, kidnapping, the offering 



108 ROMAN AND ENGLISH LAW 

of insult or injury to sacred places, have been dealt with 
more fully and specifically than would be necessary in 
a Criminal Code for England. Adultery has, conform- 
ably to the ideas of the East, been made a subject for 
criminal proceedings. Nevertheless these, and other 
similar, deviations from English rules which may be 
found in the Codes enacted for Europeans and natives 
alike, do not affect the general proposition that the codes 
are substantially English. The conquerors have given 
their law to the conquered. When the conquered had 
a law of their own which this legislation has effaced, the 
law of the conquerors was better. Where they had one 
too imperfect to suffice for a growing civilization, the 
law of the conquerors was inevitable. 

VII. The Working of the Indian Codes. 

Another question needs to be answered. It has a 
twofold interest, because the answer not only affects 
the judgement to be passed on the course which the 
English Government in India has followed, but also 
conveys either warning or encouragement to England 
herself. This question is — How have these Indian 
Codes worked in practice ? Have they improved the 
administration of justice ? Have they given satisfaction 
to the people ? Have they made it easier to know the 
law, to apply the law, to amend the law where it proves 
faulty ? 

When I travelled in India in 1888-9 I obtained 
opinions on these points from many persons competent 
to speak. There was a good deal of difference of view, 
but the general result seemed to be as follows. I take 
the four most important codifying Acts, as to which 
it was most easy to obtain profitable criticisms. 

The two Procedure Codes, Civil and Criminal, were 
very generally approved. They were not originally 
creative work, but were produced by consolidating and 
simplifying a mass of existing statutes and regulations, 



ROMAN AND ENGLISH LAW 109 

which had become unwieldy and confused. Order 
was evoked out of chaos, a result which, though bene- 
ficial everywhere, was especially useful in the minor 
Courts, whose judges had less learning and experience 
than those of the five High Courts at Calcutta, Madras, 
Bombay, Allahabad and Lahore. 

The Penal Code was universally approved ; and it 
deserves the praise bestowed on it, for it is one of the 
noblest monuments of Macaulay's genius. To appre- 
ciate its merits, one must remember how much, when 
prepared in 1834, it was above the level of the English 
criminal law of that time. The subject is eminently 
fit to be stated in a series of positive propositions, and 
so far as India was concerned, it had rested mainly 
upon statutes and not upon common law. It has been 
dealt with in a scientific, but also a practical common- 
sense way : and the result is a body of rules which 
are comprehensible and concise. To have these on 
their desks has been an immense advantage for magis- 
trates in the country districts, many of whom have had 
but a scanty legal training. It has also been claimed 
for this Code that under it crime has enormously 
diminished : but how much of the diminution is due 
to the application of a clear and just system of rules, 
how much to the more efficient police administra- 
tion, is a question on which I cannot venture to 
pronounce x . 

No similar commendation was bestowed on the Evi- 
dence Code. Much of it was condemned as being 
too metaphysical, yet deficient in subtlety. Much was 
deemed superfluous, and because superfluous, possibly 
perplexing. Yet even those who criticized its drafting 
admitted that it might possibly be serviceable to un- 
trained magistrates and practitioners, and I have myself 
heard some of these untrained men declare that they 



1 The merits of this Code are discussed in an interesting- and suggestive man- 
ner by Mr. H. Speyer in an article entitled Le Droit Penal Anglo-indien, which 
appeared in the Revue de V ' Universite de Bruxelles in April, 1900. 



110 ROMAN AND ENGLISH LAW 

did find it helpful. They are a class relatively larger in 
India than in England. 

It was with regard to the merits of the Contract Code 
that the widest difference of opinion existed. Any one 
who reads it can see that its workmanship is defective. 
It is neither exact nor subtle, and its language is often 
far from lucid. Every one agreed that Sir J. F. Stephen 
(afterwards Mr. Justice Stephen), who put it into the 
shape in which it was passed during his term of office 
as Legal Member of Council, and was also the author of 
the Evidence Act, was a man of great industry, much 
intellectual force, and warm zeal for codification. But 
his capacity for the work of drafting was deemed not 
equal to his fondness for it. He did not shine either in 
fineness of discrimination or in delicacy of expression. 
Indian critics, besides noting these facts} went on to 
observe that in country places four-fifths of the pro- 
visions of the Contract Act were superfluous, while 
those which were operative sometimes unduly fettered 
the discretion of the magistrate or judge, entangling him 
in technicalities, and preventing him from meting out 
that substantial justice which is what the rural suitor 
needs. The judge cannot disregard the Act, because 
if the case is appealed, the Court above, which has 
only the notes of the evidence before it, and does not 
hear the witnesses, is bound to enforce the provisions of 
the law. In a country like India, law ought not to be too 
rigid: nor ought rights to be stiffened up so strictly as 
they are by this Contract Act. Creditors had already, 
through the iron regularity with which the British 
Courts enforce judgements by execution, obtained far 
more power over debtors than they possessed in the 
old days, and more than the benevolence of the English 
administrator approves. The Contract Act increases this 
power still further. This particular criticism does not 
reflect upon the technical merits of the Act in itself. 
But it does suggest reasons which would not occur to 
a European mind, why it may be inexpedient by making 



ROMAN AND ENGLISH LAW 111 

the law too precise to narrow the path in which the 
judge has to walk. A stringent administration of the 
letter of the law is in semi-civilized communities no 
unmixed blessing. 

So much for the rural districts. In the Presidency 
cities, on the other hand, the Contract Code is by most 
experts pronounced to be unnecessary. The judges 
and the bar are already familiar with the points which 
it covers, and find themselves — so at least many of them 
say — rather embarrassed than aided by it. They think 
it cramps their freedom of handling a point in argument. 
They prefer the elasticity of the common law. And in 
point of fact, they seem to make no great use of the Act, 
but to go on just as their predecessors did before it was 
passed. 

These criticisms may need to be discounted a little, 
in view of the profound conservatism of the legal pro- 
fession, and of the dislike of men trained at the Temple 
or Lincoln's Inn to have anything laid down or applied 
on the Hooghly which is not being done at the same 
moment on the Thames. And a counterpoise to them 
may be found in the educational value which is attri- 
buted to the Code by magistrates and lawyers who have 
not acquired a mastery of contract law through systema- 
tic instruction or through experience at home. To them 
the Contract Act is a manual comparatively short and 
simple, and also authoritative ; and they find it useful 
in enabling them to learn their business. On the whole, 
therefore, though the Code does not deserve the credit 
which has sometimes been claimed for it, one may hesi- 
tate to pronounce its enactment a misfortune. It at any 
rate provides a basis on which a really good Code of 
contractual law may some day be erected. 

Taking the work of Indian codification as a whole, it 
has certainly benefited the country. The Penal Code 
and the two Codes of Procedure represent an unmixed 
gain. The same may be said of the consolidation of the 
statute law, for which so much was done by the energy 



112 ROMAN AND ENGLISH LAW 

and skill of Mr. Whitley Stokes. And the other codify- 
ing acts have on the whole tended both to improve the 
substance of the law and to make it more accessible. 
Their operation has, however, been less complete than 
most people in Europe realize, for while many of them 
are confined to certain districts, others are largely 
modified by the local customs which they have (as ex- 
pressed in their saving clauses) very properly respected. 
If we knew more about the provinces of the Roman 
Empire we might find that much more of local custom 
subsisted side by side with the apparently universal and 
uniform imperial law than we should gather from reading 
the compilations of Justinian. 

It has already been observed that Indian influences 
have scarcely at all affected English law as it continues 
to be administered to Englishmen in India. Still less 
have they affected the law of England at home. It seems 
to have been fancied thirty or forty years ago, when law 
reform in general and codification in particular occupied 
the public mind more than they do now, that the enact- 
ment of codes of law for India, and the success which 
was sure to attend them there, must react upon England 
and strengthen the demand for the reduction of her law 
into a concise and systematic form. No such result has 
followed. The desire for codification in England has 
not been perceptibly strengthened by the experience of 
India. Nor can it indeed be said that the experience 
of India has taught jurists or statesmen much which 
they did not know before. That a good code is a very 
good thing, and that a bad code is, in a country which 
possesses competent judges, worse than no code at 
all — these are propositions which needed no Indian ex- 
perience to verify them. The imperfect success of the 
Evidence and Contract Acts has done little more than 
add another illustration to those furnished by the Civil 
Code of California and the Code of Procedure in New 
York of the difficulty which attends these undertakings. 
Long before Indian codification was talked of, Savigny 



ROMAN AND ENGLISH LAW 113 

had shown how hard it is to express the law in a set 
of definite propositions without reducing its elasticity 
and impeding its further development. His arguments 
scarcely touch penal law, still less the law of procedure, 
for these are not topics in which much development 
need be looked for. But the future career of the 
Contract Act and of the projected Code of Torts, when 
enacted, may supply some useful data for testing the 
soundness of his doctrine. 

One reason why these Indian experiments have so 
little affected English opinion may be found in the fact 
that few Englishmen have either known or cared any- 
thing about them. The British public has not realized 
how small is the number of persons by whom questions 
of legal policy in India have during the last seventy 
years been determined. Two or three officials in Down- 
ing Street and as many in Calcutta have practically 
controlled the course of events, with little interposition 
from outside. Even when Commissions have been 
sitting, the total number of those whose hand is felt has 
never exceeded a dozen. It was doubtless much the 
same in the Roman Empire. Indeed the world seldom 
realizes by how few persons it is governed. There is 
a sense in which power may be said to rest with the 
whole community, and there is also a sense in which 
it may be said, in some governments, to rest with a 
single autocrat. But in reality it almost always rests 
with an extremely small number of persons, whose 
knowledge and will prevail over or among the titular 
possessors of authority. 

Before we attempt to forecast the future of English 
law in India, let us cast a glance back at the general 
course of its history as compared with that of the law 
of Rome in the ancient world. 
8 



114 ROMAN AND ENGLISH LAW 



VIII. Comparison of the Roman Law with English 
Law in India. 

Rome grew till her law became first that of Italy, 
then that of civilized mankind. The City became the 
World, Urbs became Orbis, to adopt the word-play 
which was once so familiar. Her law was extended 
over her Empire by three methods : — 

Citizenship was gradually extended over the provinces 
till at last all subjects had become citizens. 

Many of the principles and rules of the law of the 
City were established and diffused in the provinces by 
the action of Roman Magistrates and Courts, and es- 
pecially by the Provincial Edict. 

The ancient law of the City was itself all the while 
amended, purged of its technicalities, and simplified in 
form, till it became fit to be the law of the World. 

Thus, when the law of the City was formally extended 
to the whole Empire by the grant of citizenship to all 
subjects, there was not so much an imposition of the 
conqueror's law upon the conquered as the completion 
of a process of fusion which had been going on for 
fully four centuries. The fusion was therefore natural ; 
and because it was natural it was complete and final. 
The separation of the one great current of Roman law 
into various channels, which began in the fifth century 
a.d. and has continued ever since, has been due to 
purely historical causes, and of late years (as we shall 
see presently) the streams that flow in these channels 
have tended to come nearer to one another. 

During the period of more than four centuries (b.c. 
241 to a.d. 21 1-7), when these three methods of develop- 
ment and assimilation were in progress, the original 
law of the City was being remoulded and amended in 
the midst of and under the influence of a non-Roman 
population of aliens {peregrini) at Rome and in the 
provinces, and that semi-Roman law which was ad- 



ROMAN AND ENGLISH LAW 115 

ministered in the provinces was being created by 
magistrates and judges who lived in the provinces and 
who were, after the time of Tiberius, mostly them- 
selves of provincial origin. Thus the intelligence, re- 
flection, and experience of the whole community played 
upon and contributed to the development of the law. 
Judges, advocates, juridical writers and teachers as well 
as legislators, joined in the work. The completed law 
was the outcome of a truly national effort. Indeed it was 
largely through making a law which should be fit for both 
Italians and provincials that the Romans of the Empire 
became almost a nation. 

In India the march of events has been different, 
because the conditions were different. India is ten 
thousand miles from England. The English residents 
are a mere handful. 

The Indian races are in a different stage of civiliza- 
tion from the English. They are separated by religion ; 
they are separated by colour. 

There has therefore been no fusion of English and 
native law. Neither has there been any movement of 
the law of England to adapt itself to become the law of 
her Indian subjects. English law has not, like Roman, 
come halfway to meet the provinces. It is true that 
no such approximation was needed, because English 
law had already reached, a century ago, a point of 
development more advanced than Roman law had 
reached when the conquest of the provinces began, 
and the process of divesting English law of its archaic 
technicalities went on so rapidly during the nineteenth 
century under purely home influences, that neither the 
needs of India nor the influences of India came into 
the matter at all. 

The Romans had less resistance to meet with from 
religious diversities than the English have had, for the 
laws of their subjects had not so wrapped their roots 
round religious belief or usage as has been the case in 
India. But they had more varieties of provincial custom 



116 ROMAN AND ENGLISH LAW 

to consider, and they had, especially in the laws of the 
Hellenized provinces, systems more civilized and ad- 
vanced first to recognize and ultimately to supersede 
than any body of law which the English found. 

There is no class in India fully corresponding to the 
Roman citizens domiciled in the provinces during the 
first two centuries of the Roman Empire. The Euro- 
pean British subjects, including the Eurasians, are com- 
paratively few, and they are to a considerable extent 
a transitory element, whose true home is England. Only 
to a very small extent do they enjoy personal immunities 
and privileges such as those that made Roman citizen- 
ship so highly prized, for the English, more liberal than 
the Romans, began by extending to all natives of India, 
as and when they became subjects of the British Crown, 
the ordinary rights of British subjects enjoyed under 
such statutes as Magna Charta and the Bill of Rights. 
The natives of India have entered into the labours of the 
barons at Runnymede and of the Whigs of 1688. 

What has happened has been that the English have 
given to India such parts of their own law (somewhat 
simplified in form) as India seemed fitted to receive. 
These parts have been applied to Europeans as well as 
to natives, but they were virtually applicable to Euro- 
peans before codification began. The English rulers 
have filled up those departments in which there was 
no native law worthy of the name, sometimes, however, 
respecting local native customs. Here one finds an in- 
teresting parallel to the experience of the Romans. 
They, like the English, found criminal law and the 
law of procedure to be the departments which could 
be most easily and promptly dealt with. They, like 
the English, were obliged to acquiesce in the retention 
by a part of the population of some ancient customs 
regarding the Family and the Succession to Property. 
But this acquiescence was after all partial and local ; 
whereas the English have neither applied to India the 
more technical parts of their own law, such as that 



ROMAN AND ENGLISH LAW 117 

relating to land, nor attempted to supersede those parts 
of native law which are influenced by religion, such as 
the parts which include family relations and inheritance. 
Thus there has been no general fusion comparable to 
that which the beginning of the third century a. d. saw 
in the Roman Empire. 

As respects codification, the English have in one 
sense done more than the Romans, in another sense 
less. They have reduced such topics as penal law and 
procedure, evidence and trusts, to a compact and well- 
ordered shape, which is more than Justinian did for any 
part of the Roman law. But they have not brought the 
whole law together into one Corpus Iuris, and they have 
left large parts of it in triplicate, so to speak, that is to 
say, consisting of rules which are entirely different for 
Hindus, for Musulmans, and for Europeans. 

Moreover, as it is the law of the conquerors which 
has in India been given to the conquered practically 
unaffected by native law, so also the law of England 
has not been altered by the process. It has not been 
substantially altered in India. The uncodified English 
law there is the same (local statutes excepted) as the 
law of England at home. Still less has it been altered 
in England itself. Had Rome not acquired her Empire, 
her law would never have grown to be what it was in 
Justinian's time. Had Englishmen never set foot in 
India, their law would have been, so far as we can tell, 
exactly what it is to-day. 

Neither have those natives of India who correspond 
to the provincial subjects of Rome borne any recog- 
nizable share in the work of Indian legal development. 
Some of them have, as text-writers or as judges, 
rendered good service in elucidating the ancient Hindu 
customs. But the work of throwing English law into 
the codified form in which it is now applied in India to 
Europeans and natives alike has been done entirely by 
Englishmen. In this respect also the more advanced 
civilization has shown its dominant creative force. 



118 ROMAN AND ENGLISH LAW 

IX. The Future of English Law in India. 

Here, however, it is fit to remember that we are not, 
as in the case of the Romans, studying a process which 
has been completed. For them it was completed before 
the fifth century saw the dissolution of the western half 
of the Empire. For India it is still in progress. Little 
more than a century has elapsed since English rule was 
firmly established; only half a century since the Punjab 
and (shortly afterwards) Oudh were annexed. Although 
the Indian Government has prosecuted the work of 
codification much less actively during the last twenty 
years than in the twenty years preceding, and seems to 
conceive that as much has now been done as can 
safely be done at present, still in the long future that 
seems to lie before British rule in India the equalization 
and development of law may go much further than 
we can foresee to-day. The power of Britain is at this 
moment stable, and may remain so if she continues 
to hold the sea and does not provoke discontent by 
excessive taxation. 

Two courses which legal development may follow 
are conceivable. One is that all those departments of 
law whose contents are not determined by conditions 
peculiar to India will be covered by further codifying 
acts, applicable to Europeans and natives alike, and that 
therewith the process of equalization and assimilation 
will stop because its natural limits will have been 
reached. The other is that the process will continue 
until the law of the stronger and more advanced race 
has absorbed that of the natives and become applicable 
to the whole Empire. 

Which of these two things will happen depends upon 
the future of the native religions, and especially of 
Hinduism and of Islam, for it is in religion that the legal 
customs of the natives have their roots. Upon this 
vast and dark problem it may seem idle to speculate ; 
nor can it be wholly dissevered from a consideration 



ROMAN AND ENGLISH LAW 119 

of the possible future of the religious beliefs which 
now hold sway among Europeans. Both Islam and 
Hinduism are professed by masses of human beings so 
huge, so tenacious of their traditions, so apparently 
inaccessible to European influences, that no consider- 
able declension of either faith can be expected within 
a long period of years. Yet experience, so far as it is 
available, goes to show that no form of heathenism, 
not even an ancient and in some directions highly culti- 
vated form like Hinduism, does ultimately withstand 
the solvent power of European science and thought. 
Even now, though Hinduism is growing every day, 
at the expense of the ruder superstitions among the 
hill-folk, it is losing its hold on the educated class, 
and it sees every day members of its lower castes pass 
over to Islam. So Islam also, deeply rooted as it may 
seem to be, wanes in the presence of Christianity, and 
though it advances in Central Africa, declines in the 
Mediterranean countries. It has hitherto declined not 
by the conversion of its members to other faiths, but by 
the diminution of the Muslim population ; yet one must 
not assume that when the Turkish Sultanate or Khalifate 
has vanished, it may not lose much of its present hold 
upon the East. Possibly both Hinduism and Islam 
may, so potent are the new forces of change now at 
work in India, begin within a century or two to show 
signs of approaching dissolution. Polygamy may by that 
time have disappeared. Other peculiar features of the 
law of family and inheritance will tend to follow, though 
some may survive through the attachment to habit even 
when their original religious basis has been forgotten. 

In the Arctic seas, a ship sometimes lies for weeks 
together firmly bound in a vast ice-field. The sailor 
who day after day surveys from the masthead the daz- 
zling expanse sees on every side nothing but a solid 
surface, motionless and apparently immoveable. Yet 
all the while this ice-field is slowly drifting to the 
south, carrying with it the embedded ship. At last, 



120 ROMAN AND ENGLISH LAW 

when a warmer region has been reached and the south 
wind has begun to blow, that which overnight was a 
rigid and glittering plain is in the light of dawn a tossing 
mass of ice-blocks, each swiftly melting into the sea, 
through which the ship finds her homeward path. So 
may it be with these ancient religions. When their dis- 
solution comes, it may come with unexpected sudden- 
ness, for the causes which will produce it will have been 
acting simultaneously and silently over a wide area. If 
the English are then still the lords of India, there will 
be nothing to prevent their law from becoming (with 
some local variations) the law of all India. Once estab- 
lished and familiar to the people, it will be likely to 
remain, whatever political changes may befall, for noth- 
ing clings to the soil more closely than a body of civilized 
law once well planted. So the law of England may 
become the permanent heritage, not only of the hundreds 
of millions who will before the time we are imagining be 
living beyond the Atlantic, but of those hundreds of 
millions who fill the fertile land between the Straits of 
Manaar and the long rampart of Himalayan snows. 

We embarked on this inquiry for the sake of ascer- 
taining what light the experience of the English in 
India throws upon the general question of the relation 
of the European nations to those less advanced races 
over whom they are assuming dominion, and all of 
whom will before long own some European master 1 . 

These races fall into two classes, those which do and 
those which do not possess a tolerably complete system 
of law. Turks, Persians, Egyptians, Moors, and Siamese 
belong to the former class; all other non-European races 
to the latter. 

As to the latter there is no difficulty. So soon as 
Kafirs or Mongols or Hausas have advanced sufficiently 
to need a regular set of legal rules, they will (if their 

1 Among the ' less advanced races ' one must not now include the Japanese, but 
one may include the Turks and the Persians. The fate of China still hangs in the 
balance. It is not to be assumed that she will be ruled, though she must come to 
be influenced, and probably more and more influenced, by Europeans. 



ROMAN AND ENGLISH LAW 121 

European masters think it worth while) become subject 
to the law of those masters, of course more or less 
differentiated according to local customs or local needs. 
It may be assumed that French law will prevail in 
Madagascar, and English law in Uganda, and Russian 
law in the valley of the Amur. 

Where, however, as is the case in the Musulman and 
perhaps also in the Buddhist countries belonging to the 
former class, a legal system which, though imperfect, 
especially on the commercial side, has been carefully 
worked out in some directions, holds the field and rests 
upon religion, the question is less simple. The experi- 
ence of the English in India suggests that European 
law will occupy the non-religious parts of the native 
systems, and will tend by degrees to encroach upon 
and permeate even the religious parts, though so long 
as Islam (or Brahmanism) maintains its sway the legal 
customs and rules embedded in religion will survive. 
No wise ruler would seek to efface them so far as they 
are neither cruel nor immoral. It is only these ancient 
religions — Hinduism, Buddhism, and especially Islam — 
that can or will resist, though perhaps only for a time, 
and certainly only partially, the rising tide of European 
law. 

X. Present Position of Roman and English Law 
in the World. 

European law means, as we have seen, either Roman 
law or English law, so the last question is : Will either, 
and if so which, of these great rival systems prevail 
over the other ? 

They are not unequally matched. The Roman jurists, 
if we include Russian as a sort of modified Roman law, 
influence at present a larger part of the world's popula- 
tion, but Bracton and Coke and Mansfield might rejoice 
to perceive that the doctrines which they expounded 
are being diffused even more swiftly, with the swift 



122 ROMAN AND ENGLISH LAW 

diffusion of the English tongue, over the globe. It 
is an interesting question, this competitive advance of 
legal systems, and one which would have engaged 
the attention of historians and geographers, were not 
law a subject which lies so much outside the thoughts 
of the lay world that few care to study its historical 
bearings. It furnishes a remarkable instance of the 
tendency of strong types to supplant and extinguish 
weak ones in the domain of social development. The 
world is, or will shortly be, practically divided between 
two sets of legal conceptions of rules, and two only. 
The elder had its birth in a small Italian city, and 
though it has undergone endless changes and now 
appears in a variety of forms, it retains its distinctive 
character, and all these forms still show an underlying 
unity. The younger has sprung from the union of the 
rude customs of a group of Low German tribes with 
rules worked out by the subtle, acute and eminently 
disputatious intellect of the Gallicized Norsemen who 
came to England in the eleventh century. It has been 
much affected by the elder system, yet it has retained 
its distinctive features and spirit, a spirit specially con- 
trasted with that of the imperial law in everything that 
pertains to the rights of the individual and the means 
of asserting them. And it has communicated something 
of this spirit to the more advanced forms of the Roman 
law in constitutional countries. 

At this moment the law whose foundations were laid 
in the Roman Forum commands a wider area of the 
earth's surface, and determines the relations of a larger 
mass of mankind. But that which looks back to West- 
minster Hall sees its subjects increase more rapidly, 
through the growth of the United States and the British 
Colonies, and has a prospect of ultimately overspreading 
India also. Neither is likely to overpower or absorb 
the other. But it is possible that they may draw nearer, 
and that out of them there may be developed, in the 
course of ages, a system of rules of private law which 



ROMAN AND ENGLISH LAW 123 

shall be practically identical as regards contracts and 
property and civil wrongs, possibly as regards offences 
also. Already the commercial law of all civilized coun- 
tries is in substance the same everywhere, that is to say, 
it guarantees rights and provides remedies which afford 
equivalent securities to men in their dealings with one 
another and bring them to the same goal by slightly 
different paths. 

The more any department of law lies within the 
domain of economic interest, the more do the rules that 
belong to it tend to become the same in all countries, 
for in the domain of economic interest Reason and 
Science have full play. But the more the element of 
human emotion enters any department of law, as for 
instance that which deals with the relations of husband 
and wife, or of parent and child, or that which defines 
the freedom of the individual as against the State, the 
greater becomes the probability that existingdivergences 
between the laws of different countries may in that de- 
partment continue, or even that new divergences may 
appear. 

Still, on the whole, the progress of the world is 
towards uniformity in law, and towards a more evident 
uniformity than is discoverable either in the sphere of 
religious beliefs or in that of political institutions. 



Ill 



FLEXIBLE AND RIGID CONSTI- 
TUTIONS I 

I. The Constitutions of Rome and England. 

Rome and England are the two States whose con- 
stitutions have had the greatest interest for the world, 
and have exerted the greatest influence upon it. Out 
of the republic on the Tiber, a city with a rural terri- 
tory round it no bigger than Surrey or Rhode Island, 
grew a World Empire, and the framework of that 
Empire retained till its fall traces of the institutions 
under which the little republic, circled and threatened 
by a crowd of hostile States, had risen to show her- 
self the strongest of them all. In England a monarchy, 
first tribal and then feudal, developed from very small 
beginnings into a second World Empire of a wholly 
different type, while at the same time the ancient form 
of government, through a series of struggles and efforts, 
guided by an only half-conscious purpose, slowly de- 
veloped itself into a system monarchical only in name. 
That system became in the eighteenth century the start- 
ing-point for all modern political philosophy 2 , and in the 
nineteenth the model for nearly all the schemes of free 

1 This Essay was delivered, in the form of two lectures, in 1884, and the names 
Flexible and Rigid were then suggested for the two types of Constitution here 
described. It has been enlarged and revised and brought up to date, but the sub- 
stance remains the same. 

2 The interest which the English Constitution excited in Montesquieu may be 
compared with that which the Roman excited in Polybius. 



FLEXIBLE AND RIGID CONSTITUTIONS 125 

representative polity that have arisen in the Old World 
as well as for many in the newer countries. 

It is, however, not merely the range of their influence, 
nor merely the fact that, as the Roman Constitution 
worked upon the whole of the ancient, so the English 
Constitution has worked upon the whole of the modern 
world, that makes these two systems deserve constant 
study. Constitutions are the expression of national 
character, as they in their turn mould the character of 
those who use them ; and the same causes which made 
both peoples great have made their political institutions 
also strong and rich, specially full of instruction for all 
nations in all times. There were in the fifth century 
b. c. hundreds of commonwealths in the Mediterranean 
countries with republican frames of government, many 
of which bore a general resemblance to that of Rome. 
There were in the fourteenth century a. d. several mon- 
archies in Europe similar in their constitutional outlines 
to that of England, and with what seemed an equal pro- 
mise of rich and free development. Of the former, Rome 
alone survived, destroying or absorbing all the rest. 
Of the latter, that of England is the only one which had 
at the end of the eighteenth century grown into a system 
at once broad-based and strong, a system which secured 
both public order and the freedom of the individual citi- 
zen, and in which the people were able to make their 
voice heard and to influence the march of national policy. 
All the others had either degenerated into despotisms or 
remained comparatively crude and undeveloped. Thus 
when, after the flood of Napoleonic conquest had sub- 
sided, the peoples of the European continent began to 
essay the establishment of free constitutions, they found 
in that of England the model fittest to be followed, and 
sought to adapt its principles to their own several 
conditions. 

England, moreover, has been the parent of free 
governments in a further sense. Though she has not, 
like Rome, stretched her system of government till it 



126 FLEXIBLE AND RIGID CONSTITUTIONS 

embraced the world, she has reproduced it in those 
parts of her transoceanic dominions where her children 
have been able to form self-governing communities. 
Reduced copies of the British Constitution have been 
created in seventeen self-governing colonies. Seven of 
these have in North America been united in a Federa- 
tion whose frame of government is built on British 
lines. Six others, in Australia, have been similarly 
grouped in another Federal Government of a not less 
distinctively British type. And an independent Republic, 
far vaster in population than all these colonies put to- 
gether, has, less closely, but yet in the main and essential 
points, reproduced the principles, although not the form, 
of the institutions of the motherland. It is, therefore, 
to Rome and to England that the eye of the student of 
political constitutions will most often turn. They repre- 
sent the most remarkable developments of ordered 
political life for the ancient and for the modern world 
respectively. And whoever attempts to classify Consti- 
tutions and to note the distinctive features of the princi- 
pal types they present, will find that it is from Rome and 
from England that illustrations can most frequently and 
most profitably be drawn 1 . 

II. The Traditional Classification of 
Constitutions. 

The old-fashioned classification of Constitutions which 
has come .down to our own times is based on the 
distinction of Written and Unwritten Law, itself an ill- 
expressed and rather confusing distinction, because ius 
non scriptum is intended to denote customs: and when 
customs have been recorded in writing, they can hardly 
continue to be called unwritten. This classification 
places in the category of Written Constitutions those 
which are expressly set forth in a specially important 

1 As to the countries or peoples in which Constitutions in the proper sense can 
be said to exist, see Note at the end of this Essay. 



FLEXIBLE AND RIGID CONSTITUTIONS 127 

document or documents, and in the category of Unwrit- 
ten those which began, not in formal agreements, but in 
usage, a usage which lives in men's recollections, and 
which, even when it has been to a large extent defined, 
and secured against error, by being committed to writ- 
ing, is recorded as embodying that which men have ob- 
served, and are deemed likely to continue to observe, 
not as that to which they have bound themselves formally 
by a law. 

These terms are, however, not happy terms, although 
the distinction they aim at expressing is a real distinction. 
The line which they attempt to draw between the two 
classes of Constitutions is not a clear or sharp line, 
because in all Written Constitutions there is and must 
be, as we shall presently see,, an element of unwritten 
usage, while in the so-called Unwritten ones the tendency 
to treat the written record of custom or precedent as 
practically binding is strong, and makes that record 
almost equivalent to a formally enacted law, not to add 
that Unwritten Constitutions, though they began in 
custom, always include some statutes. Moreover, these 
names, while they dwell on a superficial distinction, 
ignore a more essential one to be presently mentioned. 
Let us therefore try to find a better classification. 

If we survey Constitutions generally, in the past as 
well as in the present, we find them conforming to one 
or other of two leading types. Some are natural growths, 
unsymmetrical both in their form and in their contents. 
They consist of a variety of specific enactments or agree- 
ments of different dates, possibly proceeding from dif- 
ferent sources, intermixed with customary rules which 
rest only on tradition or precedent, but are deemed of 
practically equal authority. Other Constitutions are 
works of conscious art, that is to say, they are the result 
of a deliberate effort on the part of the State to lay down 
once for all a body of coherent provisions under which its 
government shall be established and conducted. Such 
Constitutions are usually comprised in one instrument — 



128 FLEXIBLE AND RIGID CONSTITUTIONS 

possibly, however, in more than one — an instrument 
solemnly enacted whose form and title distinguish it 
from ordinary laws. We may provisionally call these 
two types the Old and the New, because all ancient and 
mediaeval as well as some few recent Constitutions are 
of the former kind, while most modern ones belong to 
the latter. The distinction corresponds roughly to that 
drawn, in England and America, between common law 
and statute law, or to the Roman distinction between 
ius and lex, so that we might describe the types as Com- 
mon Law Constitutions and Statutory Constitutions re- 
spectively. Yet the line of demarcation is not always a 
plain one. In countries with constitutions of the Com- 
mon Law type, statutes are frequently passed, declaring 
or modifying or abolishing antecedent usage, which su- 
persede and replace parts, possibly large parts, of the 
common law maxims, so that at last most of the leading 
rules can be found in a few great statutes. On the other 
hand, the Statutory Constitutions become developed by 
interpretation and fringed with decisions and enlarged 
or warped by custom, so that after a time the letter of 
their text no longer conveys their full effect. It is, 
therefore, desirable to have some more definite and 
characteristic test or criterion whereby to mark off the 
two types which have been just described in general 
terms. 

III. A Proposed New Classification of 
Constitutions. 

Such a criterion may be found in the relation which 
each Constitution bears to the ordinary laws of the State, 
and to the ordinary authority which enacts those laws. 
Some constitutions, including all that belong to the 
older or Common Law type, are on the level of the 
other laws of the country, whether those laws exist in 
the form of statutes only, or also in the form of recorded 
decisions defining and confirming a custom. Such con- 



FLEXIBLE AND RIGID CONSTITUTIONS 129 

stitutions proceed from the same authorities which make 
the ordinary laws ; and they are promulgated or repealed 
in the same way as ordinary laws. In such cases the term 
' Constitution ' denotes nothing more than such and so 
many of the statutes and customs of the country as deter- 
mine the form and arrangements of its political system. 
And (as will presently appear) it is often difficult to say 
of any particular law whether it is or is not a part of the 
political Constitution. 

Other constitutions, most of them belonging to the 
newer or Statutory class, stand above the other laws of 
the country which they regulate. The instrument (or 
instruments) in which such a constitution is embodied 
proceeds from a source different from that whence spring 
the other laws, is repealable in a different way, exerts a 
superior force. It is enacted, not by the ordinary legis- 
lative authority, but by some higher or specially em- 
powered person or body. If it is susceptible of change, 
it can be changed only by that authority or by that special 
person or body. When any of its provisions conflict with 
a provision of the ordinary law, it prevails, and the ordi- 
nary law must give way. These are features, partly 
political, partly legal, which mark off the two types of 
Constitution from one another; and although it will 
appear that in some few cases the question to which 
type the Constitution of a particular State belongs may 
be a nice one, still the general legal criteria to be applied 
are clear and definite. In a State possessing a constitu- 
tion of the former — the older — type, all laws (excluding 
of course by-laws, municipal regulations, and so forth) 
are of the same rank and exert the same force. There 
is, moreover, only one legislative authority competent 
to pass laws in all cases and for all purposes. But in a 
State whose Constitution belongs to the latter — the 
newer — type, there are two kinds of laws, one kind higher 
than the other, and more universally potent ; and there 
are likewise two legislative authorities, one superior and 
capable of legislating for all purposes whatsoever, the 
9 



130 FLEXIBLE AND RIGID CONSTITUTIONS 

other inferior and capable of legislating only so far as the 
superior authority has given it the right and function to 
do so. 

The difference of these two types is best explained 
by illustrative instances. At Rome in the second cen- 
tury b. c. there was but one kind of enactment. All 
leges passed by the general assembly (whether comitia 
centuriata or comitia iributd) were of the same gene- 
rality and the same force. There was but one legis- 
lative authority, the people voting in the comitia. So in 
England, during the last few centuries, there has been 
but one direct legislative authority, viz. Parliament, 
which is supreme, and all whose acts bind every citizen 
everywhere. Accordingly in England the laws called 
constitutional differ only in respect of their subject- 
matter from other laws, but are of no higher order. 
Each of such laws, though we call them in their totality 
' the British Constitution,' is alterable by the ordinary 
legislative authority at any moment, just like other laws. 
Between an Act for making a railway from Manchester 
to Liverpool and an Act extending the electoral suffrage 
to all householders or disestablishing the Protestant 
Episcopal Church in Ireland there is no difference what- 
ever in point of form or in degree of authority. In 
Switzerland, however, and in France the case is different. 
The Constitution of the Swiss Confederation is a docu- 
ment which was enacted by the people, and any amend- 
ment of which needs to be similarly enacted by them, 
whereas ordinary laws are passed by the Federal legisla- 
ture of two Houses 1 . The present Constitution of the 
French Republic was enacted by the two Chambers sit- 
ting together as a Constituent Assembly, and can be 
amended only by the Chambers sitting together in that 
capacity, after each Chamber has separately resolved that 
revision is needed, whereas ordinary laws are passed by 

1 It is unnecessary for the present purpose to call attention to the complication 
introduced in Switzerland by the application of the Referendum plan to ordinary 
laws. 



FLEXIBLE AND RIGID CONSTITUTIONS 131 

the two Chambers sitting separately. Thus both in 
Switzerland and in France there is a distinction in the 
enacting authority, and therewith also a distinction in 
the quality and force of the laws enacted, the law which is 
called the Constitution being entirely superior to the 
other laws which are passed by the legislature in the 
ordinary every-day course of its action. 

What in the case of each State of the latter or newer 
type may be the higher (and indeed supreme) authority 
which is alone competent to enact a Constitution depends 
upon the provisions of each particular system. It may be 
the whole people, voting by what is sometimes, though 
not very happily, called a plebiscite. It may be a body 
specially elected for the purpose, which dissolves when 
its work has been completed. It may be certain local 
bodies, each voting separately on the same instrument 
submitted to them. It may be, as in the case just 
mentioned of France, the ordinary legislature sitting in 
a peculiar way, or acting by a prescribed majority, or 
rendering several successive votes to the same effect 
at prescribed intervals of time. These are matters of 
detail. The essential point is that in States possessing 
Constitutions of the newer type that paramount or fun- 
damental law which is called the Constitution takes 
rank above the ordinary laws, and cannot be changed 
by the ordinary legislative authority. 

I have sought in many quarters for names, necessarily 
metaphorical names, suitable to describe these two types 
of Constitution. They might be called Moving and 
Stationary, because those of the older kind are virtually 
never at rest, but are always undergoing some sort of 
change, however slight, in the course of ordinary legis- 
lation, while those of the newer type abide fixed and 
stable in their place. Or they might be described, the 
former as Fluid, and the latter as Solid or Crystallized. 
When a man desires to change 1 the composition of a 
liquid, he pours in some other liquid or dissolves a solid 

1 /. e. to change mechanically, not necessarily chemically. 



132 FLEXIBLE AND RIGID CONSTITUTIONS 

in the liquid, and shakes the mixture. But he who wishes 
to alter the composition of a solid must first dissolve 
it or fuse it, and then, having got it into a liquid or gase- 
ous state, must mix in or extract (as the case may be) the 
other substance. The analogy between these two pro- 
cesses and those whereby a Constitution of the older and 
one of the newer type are respectively changed might 
justify these names. But there is another and simpler 
metaphor, which, though not quite perfect, seems on 
the whole preferable. Constitutions of the older type 
may be called Flexible, because they have elasticity, 
because they can be bent and altered in form while re- 
taining their main features. Constitutions of the newer 
kind cannot, because their lines are hard and fixed. 
They may therefore receive the name of Rigid Consti- 
tutions : and by these two names I propose that we 
shall call them for the purposes of this inquiry. If 
the characteristics of the two types have not been made 
sufficiently clear by what has been already said, they 
will probably become clear in the more detailed ex- 
amination of them, to which we may now proceed. 

I begin with Flexible Constitutions, not only because 
they are more familiar to students of Roman history 
and to Englishmen, but also because they are anterior 
in date. They are indeed the only constitutions which 
the ancient world possessed, for although, in the absence 
of Aristotle's famous treatise On Polities, we know com- 
paratively little about most of the constitutions even of 
the more famous Greek cities (except Athens), and prac- 
tically nothing about any others, save those of Rome 
and Carthage, there are reasons, to be given presently, 
why we may safely assume that all of them belonged 
to the Flexible type. But in the modern world they 
have become rare. Excluding despotically governed 
countries, such as Russia, Turkey, and Montenegro, 
there are now only three in Europe, those of the United 
Kingdom, of Hungary — an ancient and very interesting 
Constitution, presenting remarkable analogies to that 



FLEXIBLE AND RIGID CONSTITUTIONS 133 

of England — and of Italy, whose constitution, though 
originally set forth in one document, has been so changed 
by legislation as to seem now properly referable to the 
Flexible type. Elsewhere than in Europe, all Consti- 
tutions would appear to be Rigid 1 . 

But a preliminary objection deserves to be first con- 
sidered. Can we properly talk of a Constitution at all 
in States which, like Rome and England, draw no formal 
and technical distinction between laws of different kinds ? 
Since there was at Rome and is in England but one legis- 
lative authority, and all its statutes are of equal force, 
how distinguish those which relate to the general frame 
of government from those which embody the minor 
details of administration? The great Reform Act of 
a. d. 1832, for instance — and the same remark applies 
to the parliamentary reform Acts of 1867 and 1884 — 
was clearly a constitutional statute. But it contained 
minor provisions which no one could call fundamental, 
and some of which were soon changed by other statutes 
which would scarcely be described as constitutional. 
There are many statutes of which, as of the Municipal 
Reform Act of 1834 (and I may add as of the Local 
Government Acts of 1888 and 1894), it would be hard 
to say whether they are or are not constitutional statutes, 
and there are statutes which would not be termed consti- 
tutional (such as the Scottish Universities Act of 1852), 
which have in fact modified such a momentous consti- 
tutional document as the Act of Union with Scotland 
(5 Anne, c. 6, art. xxv). 

Technically, therefore, we cannot draw a distinction 
between constitutional and other laws. There was in 
strictness no Roman Constitution. There is no British 
Constitution. That is to say, there are no laws which 
can be definitely marked off as Fundamental Laws, de- 
fining and distributing the powers of government, the 
mode of creating public authorities, the rights and immu- 

1 Except that of the South African Republic (Transvaal). The cases of the 
British self-governing colonies will be presently referred to. 



134 FLEXIBLE AND RIGID CONSTITUTIONS 

nities of the citizen. That which we call the Constitu- 
tion of the Roman State, that which we now call the 
Constitution of the United Kingdom, is a mass of prece- 
dents, carried in men's memories or recorded in writing, 
of dicta of lawyers or statesmen, of customs, usages, un- 
derstandings and beliefs bearing upon the methods of 
government, together with a certain number of statutes, 
some of them containing matters of petty detail, others 
relating to private just as much as to public law, nearly 
all of them presupposing and mixed up with precedents 
and customs, and all of them covered with a parasitic 
growth of legal decisions and political habits, apart from 
which the statutes would be almost unworkable, or at 
any rate quite different in their working from what they 
really are. The most skilful classifier could not draw 
up a list that would bear criticism of Roman or of British 
statutes embodying the Constitution of either State : 
and even if such a list were prepared, the statutes so 
classified would fail to contain some cardinal doctrines 
and rules. Such a list, for instance, of British statutes 
would contain nothing about the Cabinet, and very little 
about the relations of the House of Commons to the 
House of Lords. On such subjects as the control of the 
House of Commons over foreign affairs, the obligation of 
the Crown to take, or the possible right of the Crown in 
certain cases to overrule, the advice of its ministers, no 
light would be thrown. Yet the statutes form the clearest 
and most manageable part of the materials which make 
up the British Constitution. Those other materials which 
have been referred to are by their very nature vague 
and indeterminate, unsusceptible of classification, and in 
many instances incapable of being set forth in definite 
rules 1 . A certain part of them is already, or is on the 
way to become, obsolete. Another part is matter of 
controversy between different schools of jurists or his- 
torians. The same thing was true of Rome, for at Rome 

1 This point has been brought out with admirable force in Mr. Dicey's Law of 
the Constitution. 



FLEXIBLE AND RIGID CONSTITUTIONS 135 

it would seem that no statute denned the power of the 
consuls, nor their relation to the Senate, nor set limits 
to the quasi-legislative authority of that great magistrate 
the Praetor. So far from being clearly ascertained were 
the powers of the Senate, that in Cicero's time it was 
matter of constitutional debate whether its decrees had 
or had not the full force of law 1 ; and men took one view 
or the other according to their political proclivities, just 
as in England men at one time differed regarding the 
right of the House of Lords to deal with money bills. 

These facts are of course obvious enough to-day to 
every English lawyer, and indeed to those laymen who 
have some tincture of historical or legal knowledge. 
It is otherwise with the general public. To them the 
word Constitution seems to represent something defi- 
nite and positive. Much of the current talk about the 
danger of altering the British Constitution 2 seems to 
spring from the notion that the name represents a con- 
crete thing, an ascertainable and positive definite body 
of rules laid down in black and white. The Romans had 
no single word to convey what we mean by ' Constitu- 
tion.' Even in the last days of the Republic Cicero 
had to use such phrases as forma, or ratio, or genus rci 
publicac, or leges et instituta; and what we call ' consti- 
tutional law ' appears in the jurists of the Empire as 
his quod ad statum rei Romanae spectat 3 . 

The objection, however, which we have been con- 
sidering, goes only to misconceptions that may arise 
from the word ' Constitution,' not to the use of the word 
itself, for some such word is indispensable. The thing 
exists, and there must be a name to describe it. A thing 
is not the less real because its limits cannot be sharply 
defined. A hill is a hill and a plain a plain, though you 
cannot fix the point where the hill subsides into the plain. 

1 See as to this, Essay XIV, p. 716. 

2 I have allowed these lines to remain, though they were more applicable in 
1884 than they are in 1900, when so many changes have been effected that argu- 
ments about the danger of changing the Constitution are less frequently heard. 

3 Ulpian in Digest, i. 1, 2. 



136 FLEXIBLE AND RIGID CONSTITUTIONS 

The aggregate of the laws and customs through and 
under which the public life of a State goes on may fitly be 
called its Constitution ; and even the still vaguer phrases, 
' Spirit of the Constitution,' ' Principles of the Constitu- 
tion,' may properly be used, since they too describe a 
general quality or tendency pervading the whole mass 
of laws and customs that rule a State which gives to this 
mass a character differing from that of the Constitution 
of any other State ; just as each great nation has what we 
call a National Character, though this character can be 
more easily recognized than defined. 



IV. The Origin of Flexible Constitutions. 

Now let us return to consider the history and the 
attributes of Flexible Constitutions. We have seen 
that they are older than those of the Rigid type. It 
may be thought that this is so because they are more 
compatible with a rude condition of society, and be- 
cause springing out of custom, always the first source 
of law, they are the simplest and most obvious form 
which regular political society can take. This is true, 
but does not fully explain the phenomena. 

A Constitution properly so called is a frame of political 
society organized through and by law, that is to say, one 
in which law has established permanent institutions with 
recognized functions and definite rights. Now such 
forms of organized political society appear first in small 
communities, whether Urban, like the City States of 
Greece, or Rural, like those of early England or mediae- 
val Switzerland. Wherever in the earlier stages of civili- 
zation we find large communities, like Egypt, Assyria, 
Peru, Russia in the sixteenth century, we find that a 
tribal organization has passed into a despotism 1 , appa- 

1 I use the term ' despotism ' for convenience, but of course no monarchy is ab- 
solutely despotic, and least of all perhaps in the ruder ages ; for monarchs are 
always amenable to public opinion, and most so when they are the leaders of a 
tribe or people in arms. The real distinction is between a government checked 



FLEXIBLE AND RIGID CONSTITUTIONS 137 

rently without passing through the intermediate stage 
of a more or less restricted monarchy. Now in a small 
area men usually organize themselves in a regular com- 
munity by vesting legal authority in a mass meeting of 
the citizens. The Folk Mot of our Teutonic ances- 
tors, like the still surviving Landesgemeinde of Uri or 
Appenzell, represents in a rural community what the 
ayopa represents in Homeric Greece, what the iKKX-qa-ia 
represents in the later Greek cities, and what the comitia 
represent at Rome ; I might add, what (in a more rudi- 
mentary form) the popular meeting represents to-day in 
Albania and what the similar meeting called a Pitso re- 
presents among the Basuto and Bechuana Kafirs. Such 
meetings, like the New England Town Meeting, are 
Primary, not Representative. They consist of all the 
freemen within the community, though, in their earlier 
stage, it is in practice the leading men who determine 
the action of the whole assembly. They make such laws 
as there are. Being not only the supreme, but the only 
legislative authority, they can at any moment change the 
laws they deem fundamental, if there are any such laws, 
for the more backward races remain in the stage of mere 
custom, and do not reach the conception of a funda- 
mental law. Whether the system of their government is 
formally embodied in one group of specially important 
laws, or, as more often happens, is left to be collected 
from a number of enactments connected and supple- 
mented by usages, that system remains on a level with 
all the other laws and usages, because it emanates 
from the same source, viz. the governing primary 
assembly. It is not till the growth of some scheme of 
representation has made familiar the distinction between 
the authority of the people themselves and that of their 

by religious sentiment consecrating ancient usage and by the fear of insurrection, 
and a government checked by well-established institutions and legal rules. As to 
Russia, it may be noted that though she has no Constitution in the proper sense, 
there are said to exist three Fundamental Laws of the Empire— that declaring 
the sovereign's autocratic power, that requiring him (or her) to be a member of 
the Orthodox Church of the East, and that fixing the rule of succession to the 
throne. 



138 FLEXIBLE AND RIGID CONSTITUTIONS 

representatives that truly Rigid Constitutions appear, 
for it is not till then that a method suggests itself of 
enacting a kind of law which shall be superior to that 
which the ordinary legislative body creates. Accordingly 
the Primary Assembly, whether in ancient Greece and 
Italy or in mediaeval Europe, works for some time, and 
may create by its constant action what is practically 
a Constitution (i.e. a set of established rules embodying 
and directing the practice of government), before the 
idea of a regular political Constitution emerges. That 
idea comes into being when in the progress of political 
thought and of jurisprudence men begin to distinguish 
between laws and customs which relate to the structure 
of the State and the management of its affairs and 
those which relate to other matters, such as the civil 
rights of individuals ; and when they also distinguish 
between rules and usages which are fixed and settled, 
because generally observed and regularly applied to re- 
current facts, and the particular decisions taken in parti- 
cular cases. In this sense the Romans may have begun 
to feel they had a Constitution before they had gone far 
in the conquest of Italy. Our English ancestors reached 
the same consciousness in the fourteenth century, when 
much stress began to be laid upon political precedents, 
and Parliament, by this time a Representative body, and 
thereby entitled to speak for the nation, had definitely 
established its rights as against the Crown 1 . The Con- 
firmation of the Charters together with the statute De 
Tallagio Non Concedendo of a. d. 1297 is often taken as 
marking the first form of the plainly settled English Con- 
stitution, but perhaps the successful resistance of Parlia- 
ment to King Edward the Third, sixty years later is a 
better point to choose. Anyhow the language of Chief 

1 The history of England illustrates what is here said regarding small and 
large communities. The Folk Mot of the West Saxons when it passed into the 
Magnum Concilium of all England, though it remained in theory a Primary As- 
sembly, was practically no longer a meeting of all freemen. It could not have 
continued to embody and safeguard the constitutional rights of the people but for 
the later invention of Representation, which made it again a virtually Popular 
though no longer a Primary Assembly. 



FLEXIBLE AND RIGID CONSTITUTIONS 139 

Justice Fortescue (under Henry the Sixth) shows how 
clearly drawn the main lines of the Constitution had be- 
come in his time. When this stage has been reached, 
efforts are sometimes made to give to these constitu- 
tional rules, or to certain among them, an exceptional 
degree of force and permanence. Such rules may be 
embodied in a document of special sanctity ; or they may 
be protected by oaths. But the creation of a truly Rigid 
Constitution comes later, when some system of repre- 
sentation has appeared. I shall presently return to ex- 
amine the causes which produce it. 

V. The Strength and Weakness of Flexible 
Constitutions. 

The names ' Flexible ' or ' Fluid,' which I have sug- 
gested for Constitutions of this type, seem to suggest 
that they are unstable, with no guarantee of solidity 
and permanence. They are in a state of perpetual flux, 
like the river of Heraclitus, into which a man cannot 
step twice. Not only are new laws constantly passed 
which more or less affect them, but their mere working 
tends to alter them daily. Just as every man's character 
is being every day insensibly modified by the acts he does, 
by the thoughts he cherishes, by the emotions which each 
new experience of life brings with it, so every decade 
saw the Constitution of Rome, and sees the Constitution 
of England, slightly different at the end of even so short 
a period from what it was at the beginning. Even a de- 
liberately conservative policy cannot arrest this process 
of variation. If the change does not for a time appear 
in the laws, it is in progress in the minds of men, and may 
have all the more violent a working when it begins to 
tell upon legislation. A reaction, such as that carried 
through by Lucius Cornelius Sulla at Rome, or that 
which followed the fall of the Cromwellian Protectorate 
in England, is almost as fertile in change as a time of 
revolution. The past can never be effaced, since the 



140 FLEXIBLE AND RIGID CONSTITUTIONS 

recollection of it is an element in shaping the future, and 
the measures taken to restore a status quo ante always 
contain much which was not in that status quo ante, much 
which is in itself new, and the source of further novelties. 
The only cases in which constitutional development can 
be said to stop are those where, as at Venice and in some 
of the cities of post-mediaeval Switzerland, an oligarchy 
gets control of the government, and, in extinguishing 
the spirit and the habits of freedom, arrests the natural 
processes of movement and development until some 
powerful neighbour overthrows the State, or internal 
economic changes induce a revolution. Even under a 
despotism, the system of government changes insensibly 
from century to century, as it did in the old French 
monarchy, and as it has recently done among a people 
so stagnant as the Turks. But despotic systems, being 
scarcely classifiable as Constitutions, do not come within 
our present inquiry. 

These things being so, it seems natural to assume that 
Flexible (the so-called 'unwritten') Constitutions, having 
been enacted and being alterable by the ordinary legis- 
lative authority, and not being contained in any specially 
sacred instrument, will in fact be subject to frequent and 
large changes, and will moreover be so readily trans- 
gressed in practice, that they will furnish an insufficient 
guarantee for public order and for the protection of 
private rights. 

The facts, however, do not support this assumption. 
Let us take our two typical instances, Rome and Eng- 
land. The Roman Constitution is an extreme case of 
a Frame of Government capable of being changed in 
the quickest and simplest way. Nothing was needed 
but a vote of the comitia, on the proposition of a com- 
petent magistrate, accompanied by the silence of the 
tribunes. No doubt any single tribune could paralyse 
the action of the comitia, but in such a community as 
Rome became in the later days of the Republic it must 
often have been easy for those who desired a change 



FLEXIBLE AND RIGID CONSTITUTIONS 141 

to ' get at,' or to remove, an obnoxious tribune. Yet 
the Constitution of Rome, regarded on its legal side, 
changed comparatively little in the three centuries that 
lie between the Licinian laws and the age of Sulla, for 
most of those deviations from ancient usage which, as 
we can now see, were working towards its fall, were in 
form quite legal, being merely occasional resorts to ex- 
pedients which the Constitution recognized, though they 
had been more rarely and more cautiously used in older 
and better days. So in England, the exercise of the 
sovereign power is lodged in an assembly which can, on 
occasion, act with extraordinary promptitude, as when 
some while ago (April 9, 1883) the Explosives Act was 
passed through the House of Commons in a few hours 
(the standing orders having been suspended), and having 
been forthwith passed by the House of Lords also, re- 
ceived the royal assent next day. So the most sacred 
rules and principles of the Constitution might with per- 
fect legality of form be abolished — Magna Charta and 
the Bill of Rights and the Act of Settlement included — 
just as quickly as the Explosives Act was passed. Yet 
the main lines of the English frame of government have 
since 1689 and 1701 remained legally the same; and the 
most important changes made since the latter year have 
been effected after long and strenuous controversies 1 . 
We all know how hard it is to secure even small con- 
stitutional improvements, such as the abolition of the 
provision, confessedly useless and certainly troublesome, 
which obliges a member of the House of Commons to 
vacate his seat and seek re-election on his being ap- 
pointed a Minister of the Crown. 

One explanation of this apparent paradox is (though 
sometimes neglected) obvious enough. The stability 
of any constitution depends not so much on its form as 
on the social and economic forces that stand behind and 
support it ; and if the form of the constitution corre- 

1 The two most important changes, the Union with Scotland and the Union 
with Ireland, were, however, among those most quickly carried through. 



142 FLEXIBLE AND RIGID CONSTITUTIONS 

spends to the balance of those forces, their support 
maintains it unchanged. Two other reasons deserve to 
be more fully stated. 

A Flexible or Common Law Constitution sometimes 
owes its stability to the very conditions which have 
enabled it to grow out of isolated laws and mere usages 
into a firmly settled Frame of Government. There have 
no doubt been many cases, such as those of most of the 
Greek cities of antiquity, where the eager restless spirit 
of the people and the violence of faction never allowed 
any system of government to last long enough to strike 
deep root. Such constitutions were often enacted all 
in one piece, and would have been made Rigid, had the 
citizens who enacted them known how to make them so. 
They were seldom the growth of long-continued usage. 
But the best instances of Flexible Constitutions have 
been those which grew up and lived on in nations of 
a conservative temper, nations which respected antiquity, 
which valued precedents, which liked to go on doing 
a thing in the way their fathers had done it before them. 
This type of national character is what enables the 
Flexible Constitution to develop ; this supports and 
cherishes it. The very fact that the legal right to make 
extensive changes has long existed, and has not been 
abused, disposes an assembly to be cautious and mode- 
rate in the use of that right. Those who have always 
enjoyed power are least likely to abuse it 1 . This truth 
might be illustrated both from Rome and from England ; 
and, indeed, from Switzerland also, though the argument 
which tries to prove the stupid conservatism of demo- 
cracy from the habits of rural communities in the last- 
named country has been pressed too far by Sir H. Maine 
and others, since in rural communities, where nearly 
every one is a citizen, and well off, and most men about 
equally well off, the usual motives for making political 
changes do not exist. 

A further reason may be found in the fact that a con- 

1 'ApxaiowAouTiov Se<r7i p 0Ta>»' ttoWt) \apis, Aesch. Again. 1002. 



FLEXIBLE AND RIGID CONSTITUTIONS 143 

stitution which has come down in the form of a mass of 
laws, precedents and customs is not only more mysteri- 
ous, and therefore more august, to the minds of the ordi- 
nary citizens than one they can read in a document, but 
is not felt by them to lie at their mercy and to live only 
by their pleasure. A constitution embodied in a docu- 
ment which they have seen drafted, and have enacted by 
their votes, has no element of antiquity or mystery. It 
issues from the sovereignty of the people, it reminds 
them of their sovereignty, it suggests to them nothing 
more exalted. Perhaps it has been the work of one 
party in the State ; and if that party becomes discredited, 
it may share the discredit. The dignity which a remote 
and half mythic origin gives to constitutions, as it does 
to royal families, was in the ancient world and the Middle 
Ages enhanced by religious associations. In Greece and 
Italy the tutelary deities of the city watched over the 
oldest laws. In mediaeval countries the order of the 
State seemed an expression of the Will of God. Although 
these sentiments have vanished from the modern world, 
the fact that an old constitution represents a long course 
of progressive development, or, to use a somewhat vul- 
garized term, of evolution, gives it some claim on the 
respect of imaginative or philosophical minds. These 
sources of moral strength have been found sufficient 
in many countries to secure an enduring life for political 
institutions which the people, or a legislative body, had 
it in their power to change, and which, in some instances, 
ought to have been replaced by other institutions more 
suited to their altered environment. 

It would, therefore, be an error to pronounce Flexible 
Constitutions unstable. Their true note, their distinctive 
merit, is to be elastic. They can be stretched or bent 
so as to meet emergencies, without breaking their frame- 
work ; and when the emergency has passed, they slip back 
into their old form, like a tree whose outer branches 
have been pulled on one side to let a vehiclepass. Justbe- 
cause their form is not rigidly fixed, a temporary change 



144 FLEXIBLE AND RIGID CONSTITUTIONS 

is not felt to be a serious change. The sentiment of re- 
spect for the established order is not shaken. The old 
habits are maintained, and the machine, modified perhaps 
in some detail which the mass of the people scarcely 
notice, seems to go on working as before. 

Whether the working is really the same is another 
matter. During two centuries and a half, from Edward 
the Third till James the First, the Constitution of Eng- 
land remained in its legal aspect scarcely altered. Though 
at some moments within that period Parliament seemed 
to have mightily gained on the Crown, and at others the 
Crown seemed to be dominating Parliament, yet it was, 
until the Civil War, doubtful whether any permanent 
change had been effected. From the days of Queen 
Anne to those of William the Fourth the Constitution 
preserved a legal character practically the same. But 
it had been altered essentially in substance. So we may 
say that while the Flexible character of a constitution 
sometimes enables it to recover from shocks without 
injury, that character sometimes conceals the effects 
of a shock, since these effects may take the form of 
changes of usage and changes of opinion among the 
citizens which have not been expressed, perhaps hardly 
can be expressed, in a definite legal form. The relations 
to one another of the two Houses of the British Parlia- 
ment, and the relations of Parliament to the now self- 
governing British Colonies, are instances in point. 

No constitution illustrates these phenomena better 
than did that of Rome. It was a complicated piece of 
work, made of many pieces, firmly attached, yet each 
piece playing freely. It had to be bent, twisted, stretched 
in many ways, under the pressure of divers exigencies. 
But it stood the strain of being bent or stretched, and 
when the force that had bent it was withdrawn, could 
return so nearly to its original shape as to seem to have 
never been disturbed. The change from consuls to 
military tribunes, the frequent appointment of a dictator, 
the memorable episode of the Decemvirate, the creation 



FLEXIBLE AND RIGID CONSTITUTIONS 145 

of new magistracies, even the admission of new and 
sometimes large masses of persons to citizenship and 
voting power, and the adaptation of its old machinery 
to the new task of governing conquered provinces, did 
not, during several centuries, permanently disturb its 
balance or seriously shake its main principles. Sus- 
pensions of the ordinary rights of the private citizen, 
extensions of the ordinary powers of the magistrate, 
which would have ruined most States by setting dan- 
gerous precedents, were at Rome found harmless be- 
cause law and custom recognized them as expedients 
available in case of need, and, in legalizing them, took 
away their revolutionary character. Thus, being parts 
of the Constitution, though parts to be used only in 
emergencies, they did not shock conservative sentiment 
nor encourage attempts pernicious to freedom — did not, 
that is to say, until at last the character of the city popu- 
lation had so completely changed and the dominions of 
the Republic had so prodigiously grown that the old 
Constitution was obviously out of date, unfit for work 
immensely heavier than that for which it had been 
constructed. 

A Greek city, or an Italian city of the Middle Ages, 
which delivered itself into the hands of a dictator when 
pressed by its neighbours, almost invariably found that 
it had given itself a master who refused to resign his 
power when the danger was past, but continued to rule 
as a Tyrant or Signore. This happened not merely be- 
cause the people were passionate and the leading men 
ambitious, for there was plenty both of passion and 
of ambition among the Romans, but largely because 
in those cities no provision was made for such emer- 
gencies; so that when it became necessary to place 
extraordinary powers in one or few hands, the Consti- 
tution received a violent wrench, from which it might 
not recover. At Rome the contingency had been fore- 
seen, and the mode of meeting it was legal. A spirit 
had been formed among the body of the people as well 



146 FLEXIBLE AND RIGID CONSTITUTIONS 

as among the leading men which held ambition in check. 
The dictator was not intoxicated by his elevation. The 
citizens did not lose their faith in the soundness of their 
system ; and it justified their confidence. 

The elasticity of the British Constitution appears in 
somewhat different features, less striking perhaps than 
those which mark Rome, but not less useful. We Eng- 
lish appoint no dictators, seeing that we have always 
fortunately had a permanent head of the Executive, 
though latterly one rather nominal than real, and have 
seldom been exposed to the dangers which the city-states 
of the ancient world had to fear. But we have kept in 
reserve a wide and vague prerogative, which, though it 
cannot in practice be put in force against the will of the 
representative House of Parliament, may be employed 
to effect things far more important than many other 
things for which express legislative authority is required. 
The control of the army and navy and the control of 
foreign policy are instances. There are, moreover, ways 
in which the normal powers of the Executive may be 
immensely increased. When a statute, such as the 
Habeas Corpus Act, is suspended, or when a Vote of 
Credit for a very large sum of money is passed, the 
control of the ordinary law and courts in the one case, 
and the control of the House of Commons in the other 
case, over the Ministers of the Crown, is for the time 
being (especially if Parliament is not sitting) and for 
some purposes practically suspended ; and the Sovereign 
(or rather the Cabinet) of to-day is almost replaced in 
the position of the last Tudor or the first Stuart. Strin- 
gent measures to repress disorder may be taken at home, 
military operations may be threatened or begun abroad 
which would be beyond the legal competence of the 
Crown in the former case and its ordinary discretionary 
powers and functions, as fixed by custom, in the latter. 
So too when it became necessary in view, not of an emer- 
gency, but of the general convenience of administration, 
to delegate to inferior authorities the supreme legisla- 



FLEXIBLE AND RIGID CONSTITUTIONS 147 

tive power of Parliament, advantage was taken of the old 
royal prerogative and of that ancient body the Privy 
Council. Parliament gave power to the Crown to issue 
Orders in Council dealing with large classes of matters 
which must otherwise have been dealt with by statute ; 
and these Orders take effect sometimes at once, some- 
times when a certain period has elapsed during which 
they have lain before Parliament and received from it no 
disapproval. In this way a vast mass of secondary le- 
gislation is annually enacted which, though it does not 
directly issue from Parliament, carries parliamentary 
authority, and does not infringe the principle that Par- 
liament is the only true source of law. And, similarly, 
out of the ancient judicial functions of the Crown and 
of the Council which advised the Crown, functions which 
a century ago seemed to be lapsing into desuetude, 
there has been evolved a new system of judicature. A 
body called the Judicial Committee of the Privy Council, 
somewhat resembling the Consistory of the Roman 
Emperors, has been created, and now acts as a Supreme 
Court of Appeal for all the transmarine possessions of 
Britain, whether Indian or Colonial. 

The merit of this elastic quality in such Constitutions 
as the Roman and the British is that it affords a means 
of preventing or minimizing revolutions by meeting 
them halfway. Let us note how each kind of Consti- 
tution, the Rigid and the Flexible, behaves when a 
serious crisis arrives, in which one section of the nation 
is bent on changing the Constitution, and the other on 
maintaining it. A Rigid Constitution, if the legal means 
provided for altering it cannot be used for the want 
of the prescribed legal majority, resists the pressure. 
It may of course resist successfully, but if so, probably 
after a conflict which has shaken the State and excited 
hostility to it in the minds of a large part of the people. 
It mayj however, if the assailing forces are very strong, 
be broken, and if so, broken past mending. A Flexible 
Constitution, however, being more easily and promptly 



148 FLEXIBLE AND RIGID CONSTITUTIONS 

alterable, and being usually a less firmly welded and 
cohesive structure, can bend without breaking, can be 
modified in such a way as to satisfy popular demands, 
can escape revolution by the practical submission of 
one of the contending forces in the particular dispute, 
that submission being recognized as a precedent which 
will be followed, even though it has not been embodied 
in any law or other formal document. The extinction 
of the right once claimed by the House of Lords to 
alter money bills is one instance. Or it may be made 
to evolve some organ which, though really new, conceals 
its novelty by keeping some of the old colour, and thus 
it may continue to work with no palpable breach of con- 
tinuity. The knowledge that a constitution can be 
changed without any tremendous effort helps to make 
a party of revolution less violent and a party of resist- 
ance less stubborn, disposing both to some compromise. 
At Rome the resort to the appointment of military tri- 
bunes with consular power when the plebs demanded, 
and the patricians would not yet consent to the election 
of a plebeian Consul, delayed revolution till opinion had 
so changed that the danger of revolution had passed 
away. So, later, the compromise by which a Praetor 
was created with the functions of a Consul but with a 
special range of duties appeased conservative feeling and 
smoothed the passage from the old order to the new. 
The history of the English Constitution is a history 
of continual small changes, no single one of which, 
hardly even the Bill of Rights at the time of the so- 
called Revolution, or the Reform Act of 1832, made 
the system look substantially different. Something no 
doubt was cut away, and something was added, but the 
structure as a whole seemed the same, because far more 
of the old was left than there was added of the new. 

The two main processes which have turned the govern- 
ment of England from the monarchy of the Tudors into 
what may be called the plutocratic democracy of to-day 
have been the limitation of the royal prerogative and the 



FLEXIBLE AND RIGID CONSTITUTIONS 149 

transference of the right of suffrage from a few to the 
multitude. Both processes have gone on slowly, by a 
succession of steps, each comparatively small, but all 
in the same direction. Accordingly the strife of parties 
has been mitigated by the existence at all, or nearly all, 
moments, of a large body of persons who desired reform, 
but only a moderate reform. They are the persons who 
impose compromise on the extremists to the right and 
to the left of them, and they can do so because the Con- 
stitution permits small reforms to be easily effected. 
The party of change, which would be a party of revolu- 
tion if it was obliged to have large changes or none, is 
apt to be divided, and its more moderate section is, or 
soon passes into, a party only of reform. The English 
Chartists of 1840-50 caused some alarm. But between 
them and the old Constitutional Whigs there were several 
sections of opinion passing by imperceptible gradations 
into one another ; and when it was seen that the current 
was setting towards changes approximating to those 
which the Chartists demanded, their less violent men 
were by degrees reabsorbed into the general body of 
the Whig or Liberal party, the latter at the same time 
moving with the times ; and some of those changes, in 
particular vote by ballot, were ultimately obtained with 
no great friction. 

It must nevertheless be remembered that in the history 
of most States a crisis is apt to arrive when elasticity 
becomes a danger, in that it tempts people to abuse the 
facility for change. There is no better sign of strength 
in a man's physical constitution than his being able to 
make some short, sudden, and violent effort without 
suffering afterwards from doing so ; and there is nothing 
of which the happy possessor of such strength is more 
proud. But those men who have reached middle life are 
aware that the temptation to strain one's strength in this 
exultant spirit is perilous. Repeated impunity is apt to 
encourage a man to go on trying experiments when the 
conditions are perhaps less favourable, or when the re- 



150 FLEXIBLE AND RIGID CONSTITUTIONS 

serve of force is less abundant than it was in youth. The 
story goes that the famous Milo of Croton, passing alone 
through a forest, saw an oak into which woodmen who 
were preparing to fell it had driven wedges. Pulling out 
the wedges, he tried to rive it asunder. But he had no 
longer the fullness of his youthful strength. The re- 
turning tree caught him by the hands and held him fast 
till he died. In our own days Captain Webb, stimu- 
lated by his feat in swimming across the English Channel, 
sought still bolder exploits, and perished in the Whirl- 
pool Rapid below Niagara Falls. So the Romans, hav- 
ing many a time given exceptional powers for special 
occasions to their magistrates, found at last that they 
had created precedents which enabled the old free Con- 
stitution to be in substance overthrown. Sulla became 
a dictator of a new kind. After a while he resigned his 
power, but the example showed that monarchy was not 
far off. Julius Caesar also received exceptional authority, 
and used it to form an army which extinguished the 
Republic. The dictatorship he had held passed under 
other forms into permanent absolutism, and what was 
practically a revolution was ultimately carried through 
with a certain deference to the old constitutional forms. 
In England, Parliament, during the sixteenth century, 
once or twice gave powers to the Crown which brought 
the Constitution into danger. In the seventeenth cen- 
tury the monarchy was abolished, and a Protectorate set 
up by revolutionary methods. This was the result of a 
war which had destroyed a vital part of the old machine, 
much to the regret of most of those who had in the first 
instance taken up arms. We have never since that date 
(except under King James the Second) seen the Consti- 
tution in any real danger. 

It is, however, often suggested that the enormous 
power possessed by Parliament might be used to upset 
fundamental institutions with reckless haste, and that 
it might therefore be prudent to impose restrictions on 
parliamentary action. And those who note the way in 



FLEXIBLE AND RIGID CONSTITUTIONS 151 

which Parliament bends and staggers under the increas- 
ing burden of work laid on it, coupled with the inade- 
quacy of its rules to secure the prompt dispatch of busi- 
ness 1 , have frequently predicted that the House of Com- 
mons may one day deliver itself into the hands of the 
Cabinet, the power of party organization having grown 
so strong- that the head of each Cabinet will be deemed 
a sort of dictator, drawing his authority, nominally of 
course, from the House of Commons, but really from 
a so-called direct ' mandate ' of the electors 2 . Others 
draw a yet more horrible picture of a party machine, 
which they call the Caucus, dictating a policy to the elec- 
tors on the one hand, and to the Cabinet on the other, 
itself reigning in the spirit of a tyrant, but under the 
forms of the Constitution. If the British Constitution, 
as we have hitherto known it, should perish, there is little 
reason to fear it will do so in this eminently ignoble 
fashion 3 . 

When Flexible Constitutions come to an end, they do 
so in one of two ways. Sometimes they pass into an 
autocracy, either dying a violent death by revolution, 
or expiring in a more natural manner through the ex- 
tension and development, under legal forms, of one of 
their organs, to a point at which it practically super- 
sedes and replaces the other organs. Sometimes, on 
the other hand, they pass into Rigid Constitutions. 
The causes which induce this latter change belong, 

1 This was written in 1884. Since that vear sweeping changes have been made 
in the procedure of the House of Commons which have greatly curtailed the rights 
and opportunities of private members while increasing the powers of the Ministry 
of the day. They have not, however, made that House able to discharge all or 
nearly all the work that falls on it ; and it is becoming (under the new rules) less 
and less careful in the exercise of its powers of voting money. 

2 This apprehension was often expressed between 1880 and 18S5. Nothing has 
occurred since to justify it so far as the dictatorship of any single person is con- 
cerned ; and it may have in great part arisen from the fact that from 1867 to 1885 
the headships of both the two great parties had been vested in exceptionally vigo- 
rous and influential leaders. There can however be no doubt that the power of 
the Cabinet as against the House of Commons has grown steadily and rapidly : 
and it appears (1901) to be still growing. 

3 Of this supposed danger also much less is heard now than in 1884. The thing 
that was then called the ' Birmingham Caucus' has ceased to be used to terrify 
the timid. 



152 FLEXIBLE AND RIGID CONSTITUTIONS 

however, to the examination of that second type of Con- 
stitution ; and will be considered when we have surveyed 
some further features characteristic of the Flexible type. 

VI. Aristocracies and Flexible Constitutions. 

Flexible Constitutions have a natural affinity for an 
aristocratic structure of government. I do not mean 
merely that they spring up at times when power is in 
the hands of the well-born or rich, for the stage of society 
in which constitutions, properly so called, begin to exist, 
is nearly always oligarchic, even if there be a monarch at 
the head of it. But there is a sort of natural attraction 
between an aristocracy and an undefined and elastic 
form of government, as there has begun to be, in most 
modern countries, a natural repulsion between such a 
form and a pure democracy. It needs a good deal of 
knowledge, skill and experience to work a Flexible Con- 
stitution safely, and it is only in the educated classes that 
these qualities can be looked for. The masses of a 
modern nation seldom appreciate the worth of ancient 
usages and forms, or the methods of applying precedents. 
In small democratic communities, such as are the Forest 
Cantons of Switzerland, this attachment to custom may 
be found, because there traditions have passed into the 
life of the people, and the maintenance of ancient forms 
has become a matter of local pride. But in a large nation 
it is only educated men who can comprehend the ar- 
rangements of a complicated system with a long history, 
who can follow its working, and themselves apply its prin- 
ciples to practice. The uninstructed like something plain, 
simple and direct. The arcana imperii inspire suspicion, 
a suspicion seldom groundless, because the initiated are 
apt to turn a knowledge of secrets to selfish purposes. 
Now a Common Law Constitution with its long series 
of precedents, some half obsolete, some of doubtful inter- 
pretation, is full of arcana. Even to-day, though the pro- 
cess of clarification and simplification has gone on fast 



FLEXIBLE AND RIGID CONSTITUTIONS 153 

since 1832, dark places are still left in the British Consti- 
tution. 

There is, however, a further reason why Common Law 
Constitutions accord better with aristocratic than with 
democratic sentiment. They allow a comparatively 
wide discretion to the chief officials of State, such as 
the higher magistrates at Rome and the Ministers of the 
Crown in England. The functions of these officials are 
not very strictly defined, because legal enactments, 
though they limit power in certain directions (far more 
rigidly now in England than was the case at Rome), do 
not draw a completely closed circle round it, but leave 
certain gaps, through which tradition and precedent 
permit it, so to speak, to shoot out and play freely. 
Aristocracies prize this latitude. They prize it because 
it is mainly to prominent members of their class that 
offices fall, and these persons are then able to act with 
freedom, to assert their individual wills, to carry out their 
views unchecked by the dread of transgressing a statute. 
On the other hand, the less conspicuous members of 
the upper class have at any rate little reason to fear 
harm from the wide authority of the officials, because 
their social position, and the influence of their family 
connexions, protect them from arbitrary treatment. 
The masses of the people have neither advantage. Very 
few of them can hope to enjoy power. Any one of them 
may suffer from an exercise of it, which, because not 
positively illegal, gives him no claim for redress. They 
have, therefore, everything to gain and nothing to lose 
if they can restrict it by those definite and fixed limita- 
tions which are congenial to Rigid rather than to Flex- 
ible Constitutions. And in the history of most peoples 
a time arrives when, the love of equality being reinforced 
by the distrust of authority, there is a movement to cut 
down the powers of the rulers to the lowest point com- 
patible with the safety of the State. The extent to which 
this process has gone is in any nation a fair test of the 
gains made by the democratic principle upon the aristo- 



L54 FLEXIBLE WD RIGID CONSTITUTIONS 

eratic. But in this respect the course things have taken 
in England has been very unlike that which they took at 
Rome. One of the first events which the authentic his- 
tory of Rome records is the effort of the plebeians to 
secure a limitation of the power of the Consuls by having 
statutes passed to define it. The effort failed. It is cha- 
racteristic of the Romans that it should have failed. Sta- 
tutes, known afterwards as the Laws of the Twelve Ta- 
bles, were enacted, statutes which doubtless on the whole 
improved the position of the plebeians. But the powers 
of the Consuls remained wide and legally indefinite down 
till the time when life went out of them under the shadow 
of an autocrat who ruled for life. Limited of course 
these powers had to be as time went on and the popular 
element in the constitution was developed, but the limi- 
tations were imposed, not by narrowing the powers 
themselves, but by the introduction of new factors. The 
two Consuls, being chosen from a circle less narrow 
than in the old days, were more frequently at variance 
with one another. Other officials were set up over 
against the Consuls, who could (if they pleased) interfere 
to restrain the Consuls. And thirdly, the permanent 
non-representative Council of Elders (the Senate), com- 
posed mainly of ex-officials, increased its influence, and 
could generally hold the magistrates in check. Things 
went very differently in England. There the prerogative 
of the Crown was the force of which the nobles as well as 
the commons stood in dread, and they united in the effort 
to restrict it down till a time when the commons were 
strong enough to dispense with the help of more than a 
section of the landowning magnates. In steadily reduc- 
ing the prerogative of the Crown, in lopping oft some 
parts of it and strictly defining others, they restricted the 
powers of the Crown and its Ministers, until at last they 
had so firmly established the right of the representative 
assembly to prescribe to the Crown what persons it 
should employ as Ministers that the old motive for limit- 
ing the prerogative vanished. Those who had been 



FLEXIBLE A ND E J G ID CONSTITUTION* 155 

feared as masters were now trusted as servants. The 
people no longer disliked what was left of the royal pre- 
rogative, because their representatives could control the 
persons who wielded it, and the members of the ruling 
assembly began to feel that it was in the public interest, 
and not against their own personal interest, to maintain 
the powers of Ministers, because many things could be 
done more easily and more promptly through these 
powers than by the passing of statutes for dealing with 
each matter in detail. There may even be a danger, in this 
new condition of things, that the royal prerogative will 
be used too freely, because that prerogative now means 
the will of the leaders of the parliamentary majority, 
whose action might at a moment of excitement be ap- 
plauded and sustained by their followers even should it 
transcend the limits fixed by constitutional usage. 

It has been already remarked that the system of checks 
in the Roman Constitution differed essentially from that 
employed in the English. Every constitution must of 
course have a system of checks, else it will quickly perish, 
or, to vary the metaphor, it must so dispose the ballast as 
to enable the vessel to recover her equilibrium after a 
violent oscillation. At Rome the checks consisted in the 
coexistence of various magistrates who could arrest one 
another's action, and in a permanent Senate with a large 
though somewhat ill-defined control, while the popular 
assembly, in theory omnipotent, was in fact restrained 
by a number of curious features in its procedure which 
made it much less effective than was the primary popular 
assembly in most of the Greek republics. It could act 
only when convoked by a magistrate, could have its 
action stopped by another magistrate, and was fre- 
quently overreached or circumvented by the Senate. In 
England, on the other hand, the Crown, which before 
the conflicts of the seventeenth century had been the 
predominant power which needed to be checked, and 
which frequently was checked, by Parliament, becomes 
after that time capable only of occasionally baffling (and 



156 FLEXIBLE AND RIQID CONSTITUTIONS 

that less and less as time went on) the now predominant 
Parliament, while the restraint on hasty or violent action 
by Parliament was found, partly in the division of Par- 
liament into two Houses, and partly, especially after 
the Upper House had begun to lose moral weight, and 
had passed more and more under the control of one party 
in the State, in the fact that an assembly of representa- 
tives, nearly all of whom belonged to the wealthier and 
so-called upper classes, was pervaded by a conservative 
temper. A representative body, the members of which 
are mostly satisfied with the world as it is, and who are 
sufficiently instructed to respect the traditions of admi- 
nistration, is, except where a question arises which stirs 
class passions, less prone to ill-considered action than 
is an assembly of all the citizens, such as was the Ecclesia 
of Athens or Syracuse, where the large majority were 
humble folk, and where the sympathy of numbers made 
the ascendency of emotion over reason doubly danger- 
ous. Thus, as compared with the democracies of the 
city-states of antiquity, the representative character of 
the assemblies of modern Europe has been a moderating 
factor. But these assemblies are now changing their 
character, as the countries in which they exist have 
changed. The progress of science has, through the 
agency of railways and telegraphs, of generally diffused 
education, and of cheap newspapers, so brought the in- 
habitants of large countries into close and constant rela- 
tions with one another and with their representatives, 
that the conditions of a small city-state are being repro- 
duced. A man living at Kirkwall knows what happened 
last night in London, eight hundred miles away, sooner 
and more fully than a man living in Marathon (distant 
eight hours' walking) knew what had happened the day 
before in Athens. The same news reaches all the citizens 
at the same time, the same emotion affects all simultane- 
ously, and is intensified by reverberation through the 
press. The nation is, so to speak, compressed into a much 
smaller space than it filled three centuries ago, and has 



FLEXIBLE AND RIGID CONSTITUTIONS 157 

become much more like a primary assembly than it was 
then. If concurrently with this change there should 
come, as some presage, a closer and more constant con- 
trol of the members of the representative assembly by 
their constituents, the representatives becoming rather 
delegates acting under instructions than men chosen to 
speak and vote because they are deemed trusty and 
intelligent, much of the moderative value which the re- 
presentative system has possessed will disappear. 

It need not be thought that in England at least there 
is any immediate risk of evils to be expected from the 
change which has been noted. Representatives have not 
yet become delegates, and if they do, it will be rather 
their own fault than that of the electors, for the electors 
respect courage and value independence. In England 
the power of party organizations over constituencies and 
members, if it grows, grows slowly. It is, in fact, not so 
much these 6rganizations as small sections of opinion 
or organized ' interests,' seeking some advantage for 
themselves, that try to terrorize candidates. There is 
still a valuable check on possible recklessness on the part 
of Parliament in the fact that it is (unlike some popular 
assemblies) guided by responsible Ministers, who have 
hitherto seldom been mere demagogues, and who have 
experience behind them, prospects of future dignity be- 
fore them, and the opinion of their own class around 
them. All that I wish to point out is that a change has 
passed on the conditions under which representative 
assemblies act, which in making them more swiftly re- 
sponsive to public sentiment, increases some of the risks 
always incident to popular government. History has not 
spoken her last word about Flexible Constitutions. 
Rather may she be opening a new stage in their develop- 
ment. 



158 FLEXIBLE AND RIGID CONSTITUTIONS 



VII. The Influence of Constitutions on the Mind 

of a Nation. 

We have been considering what are the conditions 
present in a nation which make it prefer a particular 
kind of constitution. Now let us approach the converse 
question, and inquire what will be the influence on the 
political ideas and habits of a nation of these Constitu- 
tions of the Common Law, or Flexible type, and what 
are the features of national character which will enable 
such constitutions to live on and prosper. 

Forms of government are causes as well as effects, 
and give an intellectual and moral training to the peoples 
that live under them, as the character of a parent affects 
the children of the household. Now the Common Law 
Constitution, with its complexity, its delicately adjusted 
and balanced machinery, its inconsistencies, its nuances — 
one is driven to French because there is no English word 
to express the tendency of a tendency — its abundance of 
unsettled points, in which a refined sense can perceive 
what the decision ought in each case to be without being 
able to lay down a plain and positive rule — such a con- 
stitution must undoubtedly polish and mature in the 
governing class a sort of tact and judgement, a subtlety 
of discrimination and a skill in applying old principles 
to new combinations of facts, which make it safe for a 
people to leave wide powers to their magistrates or their 
governing assembly. A sense grows up among those 
who have to work the constitution as to what is and is 
not permissible under it, and that which cannot be ex- 
pressed in the stiff phrases of a code is preserved in the 
records of precedents and shines through the traditions 
which form the minds of the rulers. This kind of consti- 
tution lives by what is called its Spirit. ' The letter kill- 
eth, but the spirit giveth life.' 

Evidently, however, it is only among certain nations 
with certain gifts that such a constitution will come to 



FLEXIBLE AND RIGID CONSTITUTIONS 159 

maturity and become a subject for science as well as 
a work of art. Three things seem needful. One is legal- 
mindedness, a liking and a talent for law. Another is a 
conservative temper, by which I mean the caution which 
declines to make changes save when a proved need for 
change arises, so that changes are made not suddenly, 
but slowly and bit by bit. The third is that intellectual 
freshness and activity which refuses to be petrified by 
respect for law or by aversion to change. It is only 
where these three qualities are fitly mixed or evenly 
balanced that either a great system of law or a finely 
tempered and durable constitution can grow up. Many 
otherwise gifted peoples have, like the Athenians in an- 
cient and, longo intervallo, the Spaniards in modern times, 
wanted one or other of these qualities, and have there- 
fore failed to enrich the world by law or by consti- 
tutions. Perhaps it was partly owing to their possessing 
other gifts, scarcely compatible with these, that the 
Athenians did fail. 

But although, when a nation has reached the point at 
which its law begins to be scientific, the law and the 
constitution become teachers, it must be remembered 
that the training they give is mainly given to the classes 
which practise law and administer the State. For 
though a nation as a whole may come to understand and 
appreciate in outline its constitution, and may attain to 
a fairly correct notion of the functions of each organ of 
government, only a comparatively small section com- 
prehends the system well enough to work it or to criti- 
cize its working. For such comprehension there is 
needed not only some knowledge of history but also 
close and continuous observation of the machinery in mo- 
tion, and either participation in the business of govern- 
ing or association with those who are carrying on that 
business. The mass of the nation cannot be expected to 
possess this familiarity. They are like the passengers 
on board an ocean steamer, who hear the clank of the 
engine and watch the stroke of the piston and admire the 



160 FLEXIBLE AND RIGID CONSTITUTIONS 

revolution of the larger wheels, and know that steam acts 
by expansion, but do not know how the less conspicuous 
but not less essential parts of the machinery play into 
the other parts, and have little notion of the use of fly- 
wheels and connecting-rods and regulators. They can 
see in what direction the vessel is moving, and can con- 
jecture the rate of speed, but they must depend on the 
engineers for the management of boilers and engines, as 
they do on the captain for the direction of the ship's 
course. In the earlier stages of national life, the masses 
are usually as well content to leave governing to a small 
upper class as passengers are to trust the captain and 
the engineers. But when the masses obtain, and feel 
that they have obtained, the sovereignty of the country, 
this acquiescence can no longer be counted on. Men 
without the requisite knowledge or training, men who, 
to revert to our illustration, know no more than that 
steam acts by expansion and that a motion in straight 
lines has to be turned into a rotary one, men who are not 
even aware of the need for knowledge and training, men 
with little respect for precedents, and little capacity for 
understanding their bearing, may take command of en- 
gines and ship: and the representative assembly may 
be filled by those who have no sense of the dangers to 
which an abuse of the vast powers of the assembly may 
lead. If such a change arrives, it imposes a severe strain 
on the constitution ; and that elasticity which has been its 
merit may prove its danger. 

It may accordingly be said that one of three condi- 
tions is generally necessary for the salvation of a Flex- 
ible Constitution. Either (i) the supremacy must re- 
main in the hands of a politically educated and politically 
upright minority, or (2) the bulk of the people must be 
continuously and not fitfully interested in and familiar 
with politics, or (3) the bulk of the people, though legally 
supreme, must remain content, while prescribing certain 
general principles, to let the trained minority manage the 
details of the business of governing. Of these conditions 



FLEXIBLE AND RIGID CONSTITUTIONS 161 

the first has disappeared from nearly all civilized coun- 
tries. The second has always been rare, and in large 
industrial countries is at present unattainable. The best 
chance of success is therefore to be found in the presence 
of the third; but it needs to be accompanied by a tone 
and taste and sense of public honour among the people 
which will recoil from the mere demagogue. 

Both the influence of its constitution upon a nation 
and the need of certain qualities in order to work a 
Flexible Constitution are well illustrated in the history 
of the Roman commonwealth. Of all famous constitu- 
tions it was the most flexible. It lived long and over- 
came many perils because it grew up among a people 
who possessed in an eminent degree the three qualities 
of legalmindedness, of conservatism, and of keen practi- 
cal intelligence. It trained the national mind to a respect 
for order and legality, and had doubtless much to do with 
the forming of that constructive genius which created 
the whole system of Roman private law. It fell at last 
because the mass of the citizens became unfit to dis- 
charge their function in the scheme. They did not, it is 
true, press into the inner circle of the governing class. 
The success first of the well-born and then of the rich in 
keeping the offices in their own hands all through is one 
of the most remarkable features of Roman history. But 
they were corrupt and reckless in the bestowal of power, 
and had really ceased to care for the freedom and welfare 
of the State. The ruling classes, on the other hand, were 
tempted by the demoralization of the masses to be their 
corrupters, and lost their old respect for legality. Even 
a conscientious philosopher like Cicero did not scruple 
to put prisoners to death without trial, and to justify 
himself by citing an act of lawless violence done four 
centuries before. The leading Romans of that day were 
as fit as ever to work the system, so far as skill and 
knowledge went, but they had not the old regard for its 
principles, nor the old sense of public duty ; and the prizes 
which office offered now that Rome was mistress of the 



162 FLEXIBLE AND RIGID CONSTITUTIONS 

world were too huge for average virtue to resist. The 
moral forces which had enabled the Roman Constitution 
to work in spite of its extraordinary complexity, and to 
live, in spite of the risks to which its own nature exposed 
it, were now fatally enfeebled. These abuses of power 
on the one hand, and on the other hand the deadlocks 
which the system of checks caused, grew more frequent 
and serious. Each successive wrench which the machine 
received became more violent, because neither faction 
had patriotism enough to try to ease them off, and so 
break the force of the shock. From the beginning of 
the Republic the chief danger had lain in the immense 
powers vested in the magistrates. These powers had 
been necessary, because the State was constantly ex- 
posed to attacks from without; and nothing but the 
sense of devotion to the interests of the State had con- 
trolled the party spirit which rages more fiercely within 
the walls of a city than it does in a large and scattered 
community. Now that Rome had vast dominions to 
rule, and now that her frontiers extended to the very 
verge of civilization, involving her in long wars with 
great monarchies or groups of tribes on those frontiers, 
large powers had to be entrusted to military chiefs, and 
entrusted for long periods. Thus the Republican con- 
stitution fell through the very faults which had always 
lain deep in its bosom, though an over-mastering patriot- 
ism had in earlier days kept them harmless. 

It is never easy, in studying the history of an institu- 
tion, to determine how much of its success or its failure 
is due to its own character, how much to the conditions, 
external and domestic, in the midst of which it has to 
work. The fortunes of the Roman Constitution would 
doubtless have been different had Rome been less 
pressed by foreign enemies in her earlier days, or had 
she been less of a conquering power in her later. So 
too it is hard to compare States so different as Rome — 
whose Constitution was always that of a City, and failed 
to widen itself so as to become a Constitution for Italy — 



FLEXIBLE AND RIGID CONSTITUTIONS 163 

and England, whose Constitution has always since the 
days of Ecghbert and Alfred been that of a large and 
originally a rural and scattered community. If, however, 
the comparison is attempted, we may observe that Eng- 
land never, after the fourteenth century, recognized 
such vast powers in the Crown (whether in the Crown 
personally or as exercised by its Ministers) as Rome 
granted to her magistrates. In the sphere of public 
law England has applied more successfully than Rome 
did the conception of the inviolability of the rights of 
the citizen as against the organs of the State, although 
that conception is itself Roman. With all their legal 
genius the Romans were too much penetrated by the 
idea of the necessary amplitude of State power to fix 
just limits to the action of the Executive. When it was 
necessary to provide for checking a magistrate, they set 
up another magistrate to do it, instead of limiting magis- 
terial powers by statute. Nor did they ever succeed as 
the English have done in disengaging the judicial from 
the executive department of government. In both these 
respects part of the merits of the English Constitution 
may be ascribed to Norman feudalism, whose precise 
definition of the respective rights of lord and vassal — all 
the lords but one being also vassals, and the greater 
vassals being also lords — helped to form and imprint deep 
the idea that powers, however strong within a definite 
sphere, may be strictly confined to that sphere, and that 
the limits of the sphere are fit matter for judicial deter- 
mination. Perhaps the existence in the clergy of a large 
class of men enjoying specific immunities the exact 
range of which had to be settled, and, where possible, 
judicially settled, may have also contributed to train this 
habit of mind. The extent to which England, favoured 
no doubt by her insular position, was able to secure 
domestic freedom while leaving a large discretionary 
authority to the Crown, is usually credited to the rise 
of the House of Commons and the vigilance of its con- 
trol. But much is also to be ascribed to that precise 



164 FLEXIBLE AND RIGID CONSTITUTIONS 

definition of the rights of the individual which has made 
life and property secure from injury on the part of the 
State, to the habit of holding officials liable for acts done 
in excess of their functions, and to that ultimate detach- 
ment of the judiciary from the influence of the Crown 
which has enabled the individual to secure by legal pro- 
cess the enforcement of his rights. These principles have 
sunk deep into the mind of the nation, and have been of 
the utmost service in forming the habits of thought and 
action by which free constitutions have to be worked. 
They are just as strong as if they were embodied in a 
Rigid Constitution, instead of being legally at the mercy 
of Parliament. But that is because they have centuries 
of tradition behind them, and because the English are 
a people who respect tradition and have been trained to 
appreciate the value of the principles which their ances- 
tors established. 

VIII. Capacity of Constitutions for Territorial 
Expansion. 

One point more remains to be mentioned before we 
quit constitutions of the Flexible type, viz. their suit- 
ability to a State which is expanding its territory and tak- 
ing in other communities whether by conquest or by 
treaty. 

Such constitutions seem especially well suited to coun- 
tries which are passing through periods of change, 
whether internal or external. When new classes of the 
population have to be admitted to share in political 
power, or when the inhabitants of newly-acquired terri- 
tories have to be taken in as citizens, this is most quickly 
and easily effected by the action of the ordinary legis- 
lature. Both Rome and England availed themselves of 
this flexibility in the earlier stages of their growth. 
England, itself created as a State by the expansion of 
the West Saxons, enlarged herself to include Wales 
with no disturbance of her former Constitution, and 



FLEXIBLE AND RIGID CONSTITUTIONS 165 

similarly fused herself with Scotland in 1707 and with 
Ireland in 1800, in both cases altering the Constitution 
of the enlarged State no further than by the admission 
of additional members to the two Houses of Parliament, 
and by the suppression of certain offices in the smaller 
kingdoms. The ease with which the earlier expansions 
were effected may be attributed to the fact that in 
mediaeval times the prominence of the king made the 
submission of any tribe or territory to him carry with 
it the incorporation of that tribe or territory into his for- 
mer dominions. The popular assembly of a community, 
such as were the South Saxons, for instance, sank into 
a secondary place as soon as the king was head of the 
South Saxons as well as of the West Saxons, for the 
council of the united people. which he summoned and 
over which he presided became the national assembly 
for all his subjects. In later times, though Scotland and 
Ireland had their separate Parliaments, these could be 
readily united with that of England, because in all three 
countries the popular House was representative. Here, 
however, England has stopped. The vast dominions 
which she possesses beyond the oceans, while legally 
subject to her Crown and Parliament, have not been 
brought into the constitutional scheme of the mother- 
land. Indeed they could hardly be brought in without 
a reconstruction of the present frame of government, 
which would probably have to be effected by the estab- 
lishment of a Rigid Constitution. 

Similarly the Roman State had its first beginnings in 
the union of neighbouring tribes, whose popular assem- 
blies coalesced into one assembly. As time went on, 
the flexibility of the constitution permitted the extension 
of political rights to a number of communities which had 
lain outside the old Roman territory. But the process 
presently stopped (so far as effective political expansion 
was concerned), because the representative system had 
not yet been invented. When after the great revolt of 
the Allies in b. c. go Rome was compelled to grant full 



166 FLEXIBLE AND RIGID CONSTITUTIONS 

citizenship to a large number of Italian communities, she 
did not take what moderns might think the obvious 
course of creating a representative assembly to which 
these allied communities might send elected delegates, 
but merely distributed the new citizens among her old 
tribes, an expedient which so far improved the position 
of the Allies that they became legally equal to Roman 
citizens, and acquired thereby various privileges and 
exemptions, but which extended to them practically no 
share in the government, since few could not come to 
Rome to give their votes in the assembly of the people. 
It may well have been that neither the oligarchs nor the 
leaders of the so-called popular party at Rome were 
willing to resign a substantial part of the power of the 
inhabitants of the City, with the opportunities of bribing 
and being bribed, in exchange for the primacy of a 
Federal or quasi-Federal Italian republic. But that the 
notion of a representative assembly had not crossed 
men's minds appears from the circumstance that the 
Italian Allies themselves, when in the course of their 
struggle they set up a rival government, merely repro- 
duced the general lines of the Roman constitution, and 
did not create any representative council, excellently as 
it might have served their purpose. So strong was the 
influence of the idea of the city community in the ancient 
world, and (it may be added) so little power of invention 
do mankind display in the sphere of political institutions. 
When an expanding State absorbs by way of treaty 
other communities already enjoying a government more 
or less constitutional, the process now usually takes the 
form of creating a Federation, and a Federation almost 
necessarily implies a Rigid Constitution. Cases where 
the Flexible Constitution of one State is stretched to 
take in another (as the Constitution of England was 
stretched to take in Scotland) are rare. The ancient 
Romano-Germanic Empire had a Flexible Constitution, 
which, already in an advanced stage of decay, was ex- 
tinguished by Napoleon. When it was desired to re- 



FLEXIBLE AND RIGID CONSTITUTIONS 167 

establish a German Empire out of a number of prac- 
tically independent States, this had to be done by the 
creation of a federal system under a Rigid Constitution. 
No similar device was required in the case of Italy, be- 
cause the communities which united themselves to the 
kingdom of Sardinia between 1859 and 1871 had not 
theretofore enjoyed constitutional government, had just 
dismissed their whilome sovereigns, were all eager for 
union, and in their eagerness for union cared but little 
for the maintenance of any local rights. 

IX. The Origin of Rigid Constitutions. 

We may now pass on to examine the other type of 
constitution, that for which I have suggested the name 
Rigid, the specific character whereof resides in the fact 
that every constitution belonging to it enjoys an autho- 
rity superior to the authority of the other laws of the 
State, and can be changed only by a method different 
from that whereby those other laws are enacted or 
repealed. This type is younger than the Flexible type. 
The latter goes back to the very beginning of organized 
political societies, being the first form which the organi- 
zation of such societies took. Rigid Constitutions, on 
the other hand, mark a comparatively advanced stage 
in political development, when the idea of separating 
fundamental laws from other laws has grown familiar, 
and when considerable experience in the business of 
government and in political affairs generally has been 
accumulated. Thus they have during the last hundred 
years been far more in favour than constitutions of the 
Flexible type. 

In Europe they exist in every constitutional country 
except the United Kingdom, Hungary, and Italy. There 
are none in the Asiatic continent, but Asia, the cradle 
of civilization, possesses no constitutional self-governing 
State whatever, except Japan, the Constitution of which, 
established in 1889, bears some resemblance to that of 



168 FLEXIBLE AND RIGID CONSTITUTIONS 

the German Empire. America, as a new continent, is 
appropriately full of them. The Republic of the United 
States has not only presented the most remarkable in- 
stance of this type in the modern world, but has by its 
success become a pattern which other republics have 
imitated, just as most modern States in the Old World 
took England for their model when they established, 
during the nineteenth century, governments more or 
less free. The Constitutions of all the forty-five States 
of the Union are Rigid, being not alterable by the legis- 
latures of those States respectively. This is also true of 
the Constitution of the Dominion of Canada, which is 
alterable only by the Imperial Parliament. The Consti- 
tutions of the seven Canadian Provinces might, so far as 
their legislatures are concerned, be deemed Flexible, 
being (except as respects the office of Lieutenant-Gover- 
nor) alterable by ordinary provincial statutes, but as all 
Provincial statutes are subject to a Dominion veto, they 
are not within the sole power of the legislatures. Mexico 
and the five republics of Central America, together with 
the nine republics of South America, have all adopted 
Constitutions which their legislatures have not received 
power to change. Africa is the most backward of the 
continents, but she has in the Orange Free State a tiny 
republic living under a Rigid Constitution. It has been 
contended that the Constitution of the South African 
Republic (Transvaal) is referable to the same category, 
but it is really de hire, and it has always been treated de 
facto, as being a Flexible Constitution 1 . The Constitu- 
tions of the Australasian colonies present legal questions 
of some difficulty, owing to the way in which the imperial 
Acts creating or confirming them have been drawn. So 
far as the method of changing these Constitutions has 
been prescribed by statutes of the colonies in which 
they exist, it would appear that each can also be changed 
by the legislature of the colony. Where those methods, 
however, are prescribed by the British Parliament, or by 

i See Essay VII, p. 378. 



FLEXIBLE AND RIGID CONSTITUTIONS 169 

instruments issuing from the Crown, the point is more 
doubtful, and would need a fuller discussion than it can 
receive here. Questions, however, touching the rela- 
tions of a legally subordinate to a legally supreme legis- 
lature lie in a different plane, so to speak, from that with 
which we are here concerned : and we may say that if 
these colonial constitutions are regarded solely as re- 
spects the legislatures of the colonies themselves, they 
are referable to the Flexible type. As to the new Federal 
Constitution of Australia there is no doubt at all. It is 
Rigid 1 , for any alteration in it requires a majority of the 
States and a majority of the direct popular vote. All the 
acts of every British colony are subject to a power of 
disallowance by the Governor or the Crown, but (al- 
though it is sometimes provided that constitutional acts 
shall be ' reserved ' for the pleasure of the Crown) this 
power is not confined to acts changing the constitution, 
conformably to the English habit of drawing little dis- 
tinction between constitutional and other enactments. 

All the above-mentioned constitutions are products of 
the last century and a quarter, and it is doubtful whether 
there existed in a. d. 1776 any independent State the 
constitution of which the ruling authority of that State 
could not have changed in the same way in which it 
changed its ordinary laws. The Swiss Confederation 
does not come into question, for that Confederation was, 
until the French laid hands on it in the last years of the 
eighteenth century, a League of States rather than a 
State, and could not be said to have any constitution in 
the proper sense, not to add that the republics of which 
the league consisted could alter the terms of their league 
in the same way in which they had formed it. The same 
remark applies to the confederation of the seven United 
Provinces of the Netherlands. 

The beginnings of Rigid Constitutions may, however, 

1 See as to this Constitution Essay VIII, p. 391. As to the Constitutions of the 
several Australian and other British colonies, reference may be made to the book 
of the late Sir Henry Jenkyns, entitled British Rale and Jurisdiction beyond the 
Seas„ the publipatfcm of which is announced for a very early date. 



170 FLEXIBLE AND RIGID CONSTITUTIONS 

be traced back to the seventeenth century. The first 
settlers in the British colonies in North America lived 
under governments created by royal charters which the 
colonial legislatures could not alter, and thus the idea of 
an instrument superior to the legislature and to the laws 
it passed became familiar x . In one colony (Connecticut) 
the settlers drew up for themselves in 1638 a set of rules 
for their government, called the Fundamental Orders. 
These Orders, developed subsequently into a royal char- 
ter, were really a rudimentary constitution. And almost 
contemporaneously the conception appeared in England 
during the Civil War. The Agreement of the People, 
presented to the Long Parliament in 1647, contains in 
outline a Frame of Government for England which was 
meant to stand above Parliament and be not changeable 
by it. So Oliver Cromwell sought by his Instrument of 
Government, promulgated in 1653, to create a Rigid 
Constitution, some at least of whose provisions were to 
be placed beyond the reach of Parliament, and indeed 
apparently to be altogether unchangeable. But his own 
Parliament refused to recognize any part of it as outside 
their right of interference 2 . 

From this rapid geographical survey we may now 
return to examine the circumstances under which con- 
stitutions of this type arise. Their establishment is usu- 
ally due to one or more of the four following motives : — 

(1) The desire of the citizens, that is to say, of the 
part of the population which enjoys political rights, to 
secure their own rights when threatened, and to restrain 
the action of their ruler or rulers. 

(2) The desire of the citizens, or of a ruler who wishes 
to please the citizens, to set out the form of the pre- 
existing system of government in definite and positive 
terms precluding further controversy regarding it. 

1 Observations on this topic may be found in the author's A merican Common' 
•wealthy chap, xxxvii. 

2 These documents are printed in Dr. S. R. Gardiner's Constitutional Docu- 
ments of the Puritan Revolution. A concise account of the Instrument may be 
found in Mr. Goldwin Smith's United Kingdom, vol. i. pp. 605-8. 



FLEXIBLE AND RIGID CONSTITUTIONS 171 

(3) The desire of those who are erecting a new poli- 
tical community to embody the scheme of polity under 
which they propose to be governed, in an instrument 
which shall secure its permanence and make it compre- 
hensible by the people. 

(4) The desire of separate communities, or of distinct 
groups or sections within a large (and probably loosely 
united) community, to settle and set forth the terms 
under which their respective rights and interests are to 
be safe-guarded, and effective joint action in common 
matters secured, through one government. 

Of these four cases, the two former arise where an 
existing State changes its constitution. The two latter 
arise where a new State is created by the gathering 
of individuals into a community, or by the union of 
communities previously more or less separate into one 
larger community, as for instance by the forming of a 
Federation. 

Note further that Rigid Constitutions arise in some 
one of four possible ways. 

1. They may be given by a monarch to his subjects 
in order to pledge himself and his successors to govern 
in a regular and constitutional manner, avoiding former 
abuses. Several modern European constitutions have 
thus come into being, of which that of the Kingdom of 
Prussia, granted by King Frederick William the Fourth 
in 1850, is a familiar example. The Statuto or Funda- 
mental Law of the Kingdom of Sardinia, now expanded 
into the Kingdom of Italy, was at one time deemed 
another instance. It is now, however, held to be a Flexi- 
ble Constitution. Magna Charta would have been a 
fragment of such a constitution had it been legally placed 
out of the possibility of any change being made in it 
by the Great Council, then the supreme legislature of 
England, but it was enacted by the king in his Great 
Council, and has always been alterable by the same 
authority. The Charte Constitutionnelle for France issued 
by Louis the Eighteenth in 1814, and renewed in an 



172 FLEXIBLE AND RIGID CONSTITUTIONS 

altered form on the choice of Louis Philippe as king in 
1830, and the Constitutions granted by their respective 
kings to Spain and to Portugal, are similar instances. 

2. They may be created by a nation for itself when 
it has thrown off (or been released from) its old form of 
government, and desires to create another entirely de 
novo. The various Constitutions of the various French 
Republics from 1790 downwards are instances, as is the 
Constitution of the Orange Free State x and the present 
(a. d. 1901) Constitution of Brazil. To this category also 
belong the Constitutions of the original thirteen States 
of the American Union. Two of these States, however, 
were content to retain the substance of the charter-con- 
stitutions under which they had lived as British Colonies, 
merely turning them into State constitutions, with noth- 
ing but the Confederation above them, that Confedera- 
tion being then a mere League and not a National 
Government. The Constitution of the Austrian part of 
the Austro-Hungarian monarchy may also be referred to 
this category. It consists of five Fundamental Laws, 
enacted in 1867, and alterable by the legislature only 
in a specially prescribed manner. 

3. They may be created by a new community, not 
theretofore a nation, when it deliberately and formally 
enters upon organized political life as a self-governing 
State, whether or no as also a member of any larger 
political body. Such are the Constitutions of the States 
of the American Union formed since 1790. Such was 
the original Constitution of Belgium, a country which 
had been previously a part of the Kingdom of Holland. 
Such is the Constitution of the Dominion of Canada, 
though it is a peculiar feature of this instrument — arid 
the same is true of the Constitutions of all the self- 
governing British Colonies — that it has been created 
not by the community which it regulates but by an 
external authority, that of the Parliament of the United 
Kingdom, in a statute of a. d. 1867. Being unchange- 

1 See Essay VII, p. 361. 



FLEXIBLE AND RIGID CONSTITUTIONS 173 

able by the Dominion Legislature, it is a Rigid Con- 
stitution within the terms of our definition, although 
changeable, like any other statute, by the British Par- 
liament. The new Federal Constitution of Australia 
belongs to the same class and had a like origin 1 . 

4. They may arise by the tightening of a looser tie 
which has theretofore existed between various self- 
governing communities. When external dangers or eco- 
nomic interests have led such communities to desire 
a closer union than treaties or federative agreements 
have previously created, such communities may unite 
themselves into one nation, and give that new nation 
a government by means of an instrument which is there- 
after not only to hold them together but to provide for 
their action as a single body. This process of turning a 
League of States (Staatenbund) into a Federal State 
(Bundesstaat) is practically certain to create a Rigid Con- 
stitution, for the component communities which are so 
uniting will of course desire that the rights of each shall 
be safeguarded by interposing obstacles and delays to 
any action tending to change the terms of their union, 
and they will therefore place the constitution out of the 
reach of amendment by the ordinary legislature. Cases 
may, however, be imagined in which the component 
communities might be willing to forego this safeguard. 
The Achaean League did so ; and its constitution was 
therefore a flexible one, but then the Achaean League 
can hardly be said to have been a single State in the strict 
sense of the word. It was rather a league, though a close 
league, of States, like the Swiss Confederation in the 
eighteenth century. 

The most familiar instances of this fourth kind of 
origin are the United States of North America, the 
Federation of Mexico (unless it be referred to the second 
class), and the present Swiss Confederation. To this 

1 As to this Constitution see Essay VIII. Unlike the Constitution of Canada, 
it can be amended by the people of Australia without the aid of the Imperial 
Parliament. 



174 FLEXIBLE AND RIGID CONSTITUTIONS 

class may also be referred the very peculiar case of the 
new German Empire, which by two steps, in 1866 and in 
1871, has created itself out of the pre-existing Germanic 
Confederation of 1815, that Confederation having been 
formed by the decay into fragments of the ancient East 
Frankish or German kingdom, which had, throughout 
the Middle Ages, a Flexible Constitution resembling 
that of the England or France or Castile of the thirteenth 
century. 

X. The Enactment and Amendment of Rigid 
Constitutions. 

Before proceeding to consider the methods by which 
these constitutions may be enacted and changed, it is 
worth while to suggest an explanation of their compara- 
tive recent appearance in history. Documentary consti- 
tutions, i.e. those contained in one or several instruments 
prepared for the purpose, are old. There were many 
of them in the Greek cities ; and efforts were some- 
times made when they were enacted to secure their 
permanence by declaring them to be unchangeable. But 
in the old days when City States (and sometimes also 
small Rural States) were ruled by Primary Assemblies, 
consisting of all free citizens, there was no authority 
higher than the legislature that could be found to enact 
a constitution, seeing that the legislature consisted of the 
whole body of the citizens. In those days, accordingly, 
when it was decided to give peculiar permanence to some 
political arrangement, so that no subsequent assembly 
of the people should upset it, two expedients were re- 
sorted to. One was to make all the leading men, perhaps 
the whole people, swear solemnly to maintain it, and 
thereby to bring in the deities of the States as co-enact- 
ing or at least protecting and guaranteeing parties. 
Tradition attributed this expedient to Lycurgus at 
Sparta. The other was to provide in the law intended to 
be Fundamental that no proposal to repeal it should ever 



FLEXIBLE AND RIGID CONSTITUTIONS 175 

be entertained, or to declare a heavy penalty on the 
audacious man who should make the proposal. The 
objection to both these expedients was that they de- 
barred any amendment, however desirable, and however 
generally desired. Hence they were in practice little 
regarded, though the exceptionally pious or supersti- 
tious Spartans were deemed to be largely deterred from 
governmental changes by the fear of divine disapproval. 
Moreover, the second of the above-named devices or 
barriers could be easily turned by proposing to repeal, 
not the Fundamental law itself, but the prohibition and 
the penalty. These having been repealed — and of course 
the proposal would not be made unless its success were 
pretty well assured — the Fundamental Law would then 
itself be forthwith repealed. It must, however, be added 
that even if the Greek cities, had adopted what seems to 
us the obvious plan of requiring a certain majority of 
votes (say two-thirds) for a change in the Fundamental 
Law, or had required it to be passed by four Assemblies 
in succession at intervals of three months, one may doubt 
whether such provisions would have restrained a ma- 
jority in communities which were small, excitable, and 
seldom legally-minded. 

Those who have suggested that the United Kingdom 
ought to embody certain parts of what we call the 
British Constitution in a Fundamental Statute (or Sta- 
tutes) and to declare such a statute unchangeable by Par- 
liament, or by Parliament acting under its ordinary 
forms, seem to forget that the Act declaring the Funda- 
mental Statute to be Fundamental and unchangeable by 
Parliament would itself be an Act like any other Act, 
and could be repealed by another ordinary statute in 
the ordinary way. All that this contrivance would obtain 
would be to interpose an additional stage in the process 
of abolition or amendment, and to call the attention both 
of the people and the legislature in an emphatic way to 
the fact that a very solemn decision was being reversed. 
Some may think that such a security, if imperfect, would 



176 FLEXIBLE AND RIGID CONSTITUTIONS 

be worth having. The restraint imposed would, however, 
be a moral not a legal one *. 

A constitution placed out of the power of the legis- 
lature may or may not be susceptible of alteration in 
a legal manner. Sometimes no provision has been made, 
when it was first established, for any change whatever. 
There are instances of this among constitutions granted 
by a monarch to his subjects — such seems to be to-day 
the case in Spain — but in cases of this kind it might pos- 
sibly be held that the grantor implicitly reserved the 
power to vary his grant, as there may not have been 
expressed in the document, and need not be, any bilateral 
obligation. As already observed, the Constitution of the 
present Kingdom of Italy was originally granted to the 
Kingdom of Sardinia by King Charles Albert in 1848; 
and it was for a long time held that the power to change 
it resided in the Crown only. It was extended by a suc- 
cession of popular votes (1859 to 1871) to the rest of 
Italy, and some conceive that this sanction makes at 
least its fundamental parts unchangeable. But the view 
that it is alterable by legislation has prevailed, and it has 
in fact been so altered in some points. The Charte Con- 
stitutionnelle granted by Louis XVIII, under which the 
government of France was carried on for many years, 

1 Soon after the above lines were written, the point they deal with came up in 
Parliament in a practical form. In the debate on the Irish Home Rule Bill of 
1S86 the question emerged whether Parliament could in constituting- a legislature 
for Ireland and assigning to that legislature a certain sphere of action legally de- 
bar itself from recalling its grant or from legislating, upon matters falling within 
that sphere, over the head of the Irish legislature. It was generally agreed by 
lawyers that Parliament could not so limit its own powers, and that no statute it 
might pass could be made unchangeable, or indeed could in any way restrict the 
powers of future Parliaments. 

Upon the general question whether Parliament could so enact any new Consti- 
tution for the United Kingdom as to debar itself from subsequently repealing that 
Constitution, it may be suggested, for the consideration of those who relish techni- 
calities, that Parliament could, if so disposed, divest itself of its present authority 
by a sort of suicide, i.e. by repealing all the statutes under which it is now sum- 
moned, and abolishing the common-law right of the Crown to summon it, and 
thereupon causing itself to be forthwith dissolved, having of course first provided 
means for summoning such an assembly, or assemblies, as the new Constitution 
created. There would then be no legal means of summoning another Parliament 
of the old kind, and the new Constitution, whatever it was, would therefore not 
be liable to be altered save in such manner as its own terms provided. 



FLEXIBLE AND RIGID CONSTITUTIONS 177 

was intended to create a sort of parliamentary govern- 
ment, in the first instance by way of gift from the sove- 
reign, but afterwards, under Louis Philippe, by way of a 
compact, or kind of covenant between monarch and peo- 
ple. The fact that it contained no provisions for altera- 
tion, having apparently been designed to last for ever, 
worked against it ; and the discontents of France may 
nave ripened the faster because no constitutional method 
had been provided for appeasing them by changes in the 
machinery of government. Nothing human is immortal ; 
and constitution-makers do well to remember that the 
less they presume on the long life of their work the 
longer it is likely to live. 

The Constitutions of Norway (created in 1814, but 
subsequently altered) and of Greece (created in 1864) 
declare that amendments are to be confined to matters 
not fundamental, but omit to specify the matters falling 
under that description. 

The existing Constitution of France is so far legally 
unalterable that no proposition for abolishing the re- 
publican form of government can be entertained. If it 
be asked, What is a republican form? one may answer 
that if ever the question has to be answered, it will 
be not so much by the via iuris as by the via facti. So 
also the Constitution of the United States is in one 
respect virtually, if not technically, unchangeable. No 
State can without its own consent be deprived of its 
equal representation in the Senate. As no State is ever 
likely to consent to such a change, the change may be 
deemed legally unattainable ; and that any State against 
which it was attempted to enforce a reduction of its re- 
presentation effected by constitutional amendments to 
which it had refused assent would be legally justified 
in considering itself out of the Union. In accordance 
with this American precedent, the new Constitution of 
Australia declares that no State can have its propor- 
tionate representation in the Parliament, or the mini- 
mum number of its representatives in the House of 
12 



178 FLEXIBLE AND RIGID CONSTITUTIONS 

Representatives, reduced without the approval of a ma- 
jority of its electors voting on a constitutional amend- 
ment x . 

Among the methods by which constitutions of the 
Rigid type make, as they now almost invariably do, 
provision for their own amendment, four deserve to be 
enumerated. 

The first is to give the function to the Legislature, 
but under conditions which oblige it to act in a special 
way, different from that by which ordinary statutes are 
passed. There may, for instance, be required a fixed 
quorum of members for the consideration of amend- 
ments. Belgium fixes this quorum at two-thirds of each 
House, while also requiring a two-thirds majority of 
each House for a change. Bavaria requires a quorum of 
three-fourths of the members of each House ; Rumania 
one of two-thirds. Or again — and this is a very frequent 
provision, found even when that last-mentioned is want- 
ing — a specified minimum majority of votes may be re- 
quired to carry an amendment. Sometimes this majority 
is three-fourths (as in Greece and Saxony, and in the 
German Empire for a vote of the Federal Council) : more 
frequently it is two-thirds, as in the United States Con- 
gress, in the Mexican Chambers, in Norway, Belgium, 
Rumania, Servia, Bulgaria. Another plan is to require 
a dissolution of the Legislature, so that the amendments 
carried in one session may come under the judgement of 
the electors at a general election, and be thereafter 
passed, or rejected, by the newly chosen Legislature. 
This arrangement, often combined with the two-thirds 
majority rule, prevails in Holland, Norway, Rumania, 
Portugal, Iceland, Sweden (where the amendment must 
have been passed in two ordinary successive sessions), 
and several other States, including some of the republics 
of Spanish America. It is in substance an appeal to the 
people as well as to their representatives, and therefore 
adds a further guarantee against hasty change. Finally, 

1 See Essay VIII. 



FLEXIBLE AND RIGID CONSTITUTIONS 179 

the two Houses of the Legislature may sit together as 
a Constituent Assembly. Thus in France (Constitution 
of 1875) when each Chamber has resolved that the Con- 
stitution shall be revised, the two are for the moment 
fused, and proceed to debate and pass amendments. 
Haiti (Constitution of 1899) has a similar plan, which, 
oddly enough, was not borrowed from France, but is as 
old as 1843. Few will suspect France of borrowing from 
Haiti. 

A second plan is to create a special body for the work 
of revision. In the United States, where a vast deal of 
constitution making and revising goes on in the several 
States, such a body is called a Convention, and is usually 
elected when it is desired to re-draft the whole constitu- 
tion, the ultimate approval of the draft being, however, 
almost always reserved for the people 1 . In Servia and 
Bulgaria, after amendments have been twice passed by 
the ordinary Legislature, a sort of Special Assembly, 
similarly elected, but twice as large, called the Great 
Skuptschina (in Servia) or Great Sobranje (in Bul- 
garia), receives and finally decides on the proposed 
amendments. 

The republics of Paraguay, Guatemala, Honduras, 
Nicaragua, and Salvador also prescribe Conventions, 
preceded in each case by votes of the Legislature, such 
votes usually requiring a two-thirds majority 2 . 

A third plan is to refer the new constitution, or the 
amendments proposed (if the revision is partial), to a 
number of minor or local authorities for approval. This 
course is an obviously suitable one in a federation, and 
has accordingly been adopted by the United States, by 
Mexico, by Colombia, by Switzerland, and by the new 

1 But the Constitution of Mississippi of 1890 was enacted by a Convention only 
and never submitted to the people. See as to the United States the author's 
American Commonwealth, ch. xxxvii. 

2 On the whole subject of the modes of amending constitutions reference may 
be made to the valuable book of my friend M. Charles Borgeaud, Professor at 
Geneva, Etablissement et Revision des Constitutions. See also Dareste, Les Con- 
stitutions Modernes. I owe to these books, and especially to the former, most of 
the facts here given regarding the minor States. 



180 FLEXIBLE AND RIGID CONSTITUTIONS 

Australian Commonwealth, in all of which the com- 
ponent States are consulted, the United States requiring 
a three-fourths majority of States, Switzerland, Austra- 
lia, and Mexico a bare majority. (Switzerland and Aus- 
tralia also require a majority of the citizens generally.) 
It is not, however, invariable in federal countries, for the 
Argentine Confederation entrusts amendment to a Con- 
vention, following on a three-fourths majority vote of 
the Legislature, and Brazil (now a federal country) 
leaves it to the Legislature alone, acting by a two-thirds 
majority in three successive debates. Neither is such 
a plan necessarily confined to a federation, for the exist- 
ing Constitution of Massachusetts was (in 1780) sub- 
mitted to the Towns (i.e. townships) of the State, acting 
as communities, and enacted by the majority of them. 

The fourth plan is to refer amendments to the direct 
vote of the people. Originating in the New England 
States of America, where democracy earliest prevailed, 
this method has spread to Switzerland and to Australia, 
both of which require for alterations in the Funda- 
mental Instrument a majority of the electors voting 
as well as a majority of the States. It prevails now 
not only in these two federations, but also in the several 
States of the United States (with very rare exceptions). 
A bare majority of votes is sufficient, except in Rhode 
Island, where three-fifths are required, and in Indiana 
and Oregon, which require a majority of all the qualified 
voters. The popular vote is also in use in the several 
Cantons of Switzerland. It was repeatedly employed 
in France during the first Revolution, and again (under 
the name of plebiscite) by Louis Napoleon under the 
Second Empire. 

These variations in the mode of amending are in- 
teresting enough to deserve a few comments. 

Broadly speaking, two methods of amendment are 
most in use : that which gives the function to the Legis- 
lature, usually requiring something more than a bare 
majority, and that which gives it to the People, i.e. the 



FLEXIBLE AND RIGID CONSTITUTIONS 181 

qualified voters. The former of these methods often 
directs a dissolution of the Legislature to precede the 
final vote on amendments, and in this way secures for 
the people a means of delivering their judgement on 
the questions at issue. The latter method is, however, 
a more distinct and emphatic, because a more direct, re- 
cognition of Popular Sovereignty; and it has the advan- 
tage of making the constitution appear to be the work 
of the Nation as a whole, apart from faction, whereas 
in the Legislature it may have been by a party vote that 
the amendments have been carried. Thus it supplies 
the broadest and firmest basis on which a Frame of 
Government can rest. The Convention system is inter- 
mediate between the two others, and has struck no deep 
roots in the Old World, while in the United States it 
has been virtually superseded (as respects enactment) 
by that of the direct Popular Vote. 

Geographically regarded, the method of revision by 
Legislature prevails over Europe and over most of 
Spanish America (being in the latter region sometimes 
combined with the Convention method). The Constitu- 
tion which has most influenced others in Europe and 
become a type for them in this respect is that of Holland 
(1814), because it was the earliest one established after 
the revolutionary period. On the other hand, the United 
States (except the Federal Government) and the demo- 
cratic governments of the Swiss and Australian Federa- 
tions are ruled by the Popular method. The Constitu- 
tion which has set the type of this method is that of 
Massachusetts of 1780. 

As respects facility of change, it is interesting to note 
that the Constitutions which are most quickly and easily 
altered are those of Prussia, which prescribes no safe- 
guard save that of two successive votes separated by an 
interval of at least twenty-one days, and that of France, 
which requires an absolute majority of each House for 
a proposal to revise, and an absolute majority of the two 
Houses sitting together for the carrying of any amend- 



184 FLEXIBLE AND RIGID CONSTITUTIONS 

The French plan of using the two Houses sitting 
together as a Constituent Convention has a certain in- 
terest for Englishmen, because the suggestion has been 
made that disputes between their House of Lords and 
House of Commons might be settled by a vote of both 
sitting together, i.e. of the whole of the Great Council 
of the Nation x as it sat in the thirteenth century before 
it had formed the habit of debating and voting in two 
Houses. It still meets (but does not debate or vote) 
as one body when the Sovereign, or a Commission re- 
presenting the Sovereign, is present, as happens at the 
beginning and at the end of each session. 

To examine the distinctive qualities of Rigid Consti- 
tutions, as I must now do, is virtually to traverse again 
the same path which was followed in investigating those 
of the Flexible type, for the points in which the latter 
were found deficient are those in which Rigid Constitu- 
tions excel, while the merits of the Flexible indicate the 
faults of the Rigid. The inquiry may, therefore, be brief. 

The two distinctive merits claimed for these Consti- 
tutions are their Definiteness and their Stability. 

XI. The Definiteness of Rigid Constitutions. 

We have seen that the distinctive mark of these Rigid 
Constitutions is their superiority to ordinary statutes. 
They are not the work of the ordinary legislature, and 
therefore cannot be changed by it. They are embodied 
in one written document, or possibly in a few documents, 
so that their provisions are ascertainable without doubt 
by a reference to the documentary terms. This feature 
is a legitimate consequence of the importance which be- 
longs to a law placed above all other laws. That which 

1 This plan would have more chance of being favourably entertained were the 
Upper House now, as it was in 1760, less than two hundred strong-. As it is now 
nearly as large as the House of Commons, with a majority of about fourteen to 
one belonging to one political party, the party which is in a permanent minority 
might feel that the chances are not equal. 



FLEXIBLE AND RIGID CONSTITUTIONS 185 

is to be the sheet-anchor of the State, giving permanent 
shape to its political scheme, cannot be left unwritten, 
and cannot be left to be gathered from a comparison of a 
considerable number of documents which may be con- 
fused or inconsistent. Whether it spring from the agree- 
ment of the citizens or from the free gift of a monarch, 
it must be embodied if possible in one, if not, at any rate 
in only a few solemn instruments. That which is to be a 
fundamental law, limiting the power of the legislature, 
must be set forth in specific and unmistakable terms — 
else how shall it be known when the legislature is infring- 
ing upon or violating it ? A Flexible Constitution, which 
the legislature can modify or destroy at its pleasure, 
though it might conceivably be embodied in one docu- 
ment only, is in fact almost always to be collected from 
at least several documents, and is often, like the Flexible 
Constitution of England, scattered through a multitude 
of statutes and collections of precedents. But the bene- 
fits expected from a Rigid Constitution would be lost 
were its provisions left in similar confusion. 

It is not, however, to be supposed that the citizen of 
a country controlled by a Rigid Constitution who desires 
to understand the full scope and nature of his govern- 
ment will find all that he needs in the document itself. 
No law ever was so written as to anticipate and cover all 
the cases that can possibly arise under it 1 . There will 
always be omissions, some left intentionally, because the 
points not specifically covered were deemed fitter for the 
legislature to deal with subsequently, some, again, be- 
cause the framers of the constitution could not agree, or 
knew that the enacting authority would not agree, re- 
garding them. Other omissions, unnoticed at the time, 
will be disclosed by the course of events, for questions 
are sure to arise which the imagination or foresight of 
those who prepared the constitution never contemplated. 
There will also be expressions whose meaning is ob- 

1 ' Neque leges neque senatus consulta ita scribi possunt, ut omnes casus qui 
quandoque inciderint comprehendantur.' — Iulianus in Digest i. 3, 10. 



186 FLEXIBLE AND RIGID CONSTITUTIONS 

scure, and whose application to unforeseen cases will be 
found doubtful when those cases have to be dealt with. 
Here let us distinguish three classes of omissions or 
obscurities: — 

The first class includes matters, passed over in silence 
by the written constitution, which cannot be deemed to 
have been left to be settled either by the legislature or 
by any other organ of government, because they are too 
large or grave, as for instance matters by dealing with 
which the legislature would disturb the balance of the 
constitution and encroach on the province of the Execu- 
tive, or the Judiciary, or (in a Federal Government) of 
the component States. Matters belonging to this class 
can only be dealt with by an amendment of the consti- 
tution itself. 

The second class includes gaps or omissions relating 
to matters not palpably outside the competence of the 
legislature as defined by the constitution. Here the 
proper course will be for the legislature to regulate 
such matters by statute, or else to leave them to be 
settled by the action of the several organs of government 
each acting within its own sphere. These organs may 
by such action create a body of usage which, when well 
settled, will practically supplement the defects of the 
constitution, as statutes will do in like manner, so far as 
they are passed to cover the omitted cases. 

The third class consists not of omissions but of matters 
which are referred to by the constitution, but in terms 
whose meaning is doubtful. Here the question is what 
interpretation is to be given to its words by the authority 
entitled to interpret, that authority being in some coun- 
tries the legislature, in others the judicial tribunals. To 
the subject of Interpretation I shall presently return. 
Meantime, it must be noted that both Legislation and 
Usage in filling up the vacant spaces in the constitution, 
and Interpretation in explaining its application to a 
series of new cases as they arise upon points not ex- 
pressly covered by its words, expand and develop a con- 



FLEXIBLE AND RIGID CONSTITUTIONS 187 

stitution, and may make it after a long interval of time 
different from what it seemed to be to those who watched 
its infancy. The statutes, usages, and explanations afore- 
said will in fact come to form a sort of fringe to the con- 
stitution, cohering with it, and possessing practically the 
same legal authority as its express words have. And it 
thus may happen that (as in the United States) a large 
mass of parasitic law grows up round the document or 
documents which contain the Constitution. Nevertheless 
there will still remain a distinction between this parasitic 
law and usage and the provisions of the constitution 
itself. The latter stand unchangeable, save by constitu- 
tional amendment. Statutes, on the other hand, can be 
changed by the legislature ; usage may take a new direc- 
tion ; the decisions given interpreting the constitution 
may be recalled or varied by the authority that pro- 
nounced them. All these are in fact Flexible parasites 
growing upon a Rigid stem. Thus it will be seen that the 
apparent defmiteness and simplicity of Documentary 
Constitutions may in any given case be largely qualified 
by the growth of a mass of quasi-constitutional matter 
which has to be known before the practical working of 
the constitution can be understood. 

XII. The Stability of Rigid Constitutions. 

The stability of a constitution is an object to be much 
desired both because it inspires a sense of security in the 
minds of the citizens, encouraging order, industry and 
thrift, and because it enables experience to be accumu- 
lated whereby the practical working of the constitution 
may be improved. Political institutions are under all 
circumstances difficult to work, and when they are fre- 
quently changed, the nation does not learn how to work 
them properly. Experiment is the soul of progress, but 
experiments must be allowed a certain measure of time. 
The plant will not grow if men frequently uncover the 
roots to see how they are striking. Constitutions em- 



188 FLEXIBLE AND RIGID CONSTITUTIONS 

bodied in one legal document and unchangeable by the 
legislature, are intended to be, and would seem likely 
to be, peculiarly durable. Being definite, they do not 
give that opening to small deviations and perversions 
likely to arise from the vagueness of a Flexible or ' un- 
written ' Constitution, or from the probable discre- 
pancies between the different laws and traditions of 
which it consists. They may be battered down, but they 
cannot easily (save by a method to be presently ex- 
amined) be undermined. When an attack is made upon 
them, whether by executive acts violating their provi- 
sions, or by the passing of statutes inconsistent with 
those provisions, such an attack can hardly escape obser- 
vation. It is a plain notice to the defenders of the consti- 
tution to rally and to stir up the people by showing the 
mischief of an insidious change. The principles on which 
the government rests, being set forth in a broad and 
simple form, obtain a hold upon the mind of the com- 
munity, which, if it has been accustomed to give those 
principles a general approval, will be unwilling to see 
them tampered with. Moreover the process prescribed 
for amendment interposes various delays and formalities 
before a change can be carried through, pending which 
the people can reconsider the issues involved, and recede, 
if they think fit, from projects that may have at first 
attracted them. Both in Switzerland and in the States 
of the American Union it has repeatedly happened that 
constitutional amendments prepared and approved by 
the legislature have been rejected by the people, not 
merely because the mass of the people are often more 
conservative than their representatives, or are less ame- 
nable to the pressure of particular ' interests ' or sections 
of opinion, but because fuller discussion revealed objec- 
tions whose weight had not been appreciated when the 
proposal first appeared. In these respects the Rigid 
Constitution has real elements of stability. 

Nevertheless it may be really less stable than it ap- 
pears, for there is in its rigidity an element of danger. 



FLEXIBLE AND RIGID CONSTITUTIONS 189 

It has already been noted that a constitution of the 
Flexible type finds safety in the elasticity which enables 
it to be stretched to meet some passing emergency, and 
then to resume its prior shape, and that it may disarm 
revolution by meeting revolution half-way. This is just 
what the Rigid Constitution cannot do. It is constructed, 
if I may borrow a metaphor from mechanics, like an iron 
railway-bridge, built solidly to resist the greatest amount 
of pressure by wind or water that is likely to impinge 
upon it. If the materials are sound and the workmanship 
good, the bridge resists with apparent ease, and perhaps 
without showing signs of strain or displacement, up to 
the highest degree of pressure provided for. But when 
that degree has been passed, it may break suddenly and 
utterly to pieces, as the old Tay Bridge did under the 
storm of December, 1879. The fact that it is very strong 
and all knit tightly into one fabric, while enabling it to 
stand firm under small oscillations or disturbances, may 
aggravate great ones. For just as the whole bridge 
collapses together, so the Rigid Constitution, which has 
arrested various proposed changes, may be overthrown 
by a popular tempest which has gathered strength from 
the very fact that such changes were not and under the 
actual conditions of politics could not be made by way 
of amendment. When a party grows up clamouring for 
some reforms which can be effected only by changing 
the constitution, or when a question arises for dealing 
with which the constitution provides no means, then, 
if the constitution cannot be amended in the legal way, 
because the legally prescribed majority cannot be ob- 
tained, the discontent that was debarred from any legal 
outlet may find vent in a revolution or a civil war. The 
history of the Slavery question in the United States il- 
lustrates this danger on so grand a scale that no other 
illustration is needed. The Constitution of 1787, while 
recognizing the existence of slavery, left sundry ques- 
tions, and in particular that of the extension of slavery 
into new territories and States, unsettled. Thirty years 



190 FLEXIBLE AND RIGID CONSTITUTIONS 

later these matters became a cause of strife, and after 
another thirty years this strife became so acute as to 
threaten the peace of the country. Both parties claimed 
that the Constitution was on their side. Had there been 
no Constitution embodied in an instrument difficult of 
change, or had it been practicable to amend the Consti- 
tution, so that the majority in Congress could have had, 
at an earlier stage, a free hand in dealing with the ques- 
tion, it is possible — though no one can say that it is 
certain — that the War of Secession might have been 
averted. So much may at any rate be noted that the Con- 
stitution, which was intended to hold the whole nation 
together, failed to do. There might no doubt in any 
case have been armed strife, as there was in England 
under its Flexible Constitution in 164.1. But it is at least 
equally probable that the slave-holding party, which saw 
its hold on the government slipping away, hardened its 
heart because it held that it was the true exponent 
of the Constitution, and because the Constitution made 
compromise more difficult than it need have been in a 
country possessing a fully sovereign legislature. 

Two opposing tendencies are always at work in coun- 
tries ruled by these Constitutions, the one of which tends 
to strengthen, the other to weaken them. The first is 
the growth of the respect for the Constitution which 
increasing age brings. The remark is often made that if 
husband and wife do not positively dislike one another, 
and if their respective characters do not change under 
ill-health or misfortune, every year makes them like one 
another better. They may not have been warmly at- 
tached at first, but the memories of past efforts and 
hardships, as well as of past enjoyments, endear them 
more and more to one another, and even if jars and 
bickerings should unhappily recur from time to time, 
the strength of habit renders each necessary to the other, 
and makes that final severance which, at moments of 
exasperation, they may possibly have contemplated with 
equanimity, a severe blow when it arrives. So a nation, 



FLEXIBLE AND RIGID CONSTITUTIONS 191 

though not contented with its Constitution, and vexed 
by quarrels over parts of it, may grow fond of it simply 
because it has lived with it, has obtained a measure of 
prosperity under it, has perhaps been wont to flaunt its 
merits before other nations, and to toast it at public 
festivities. The magic of self-love and self-complacency 
turns even its meaner parts to gold, while imaginative 
reverence for the past lends it a higher sanction. This 
is one way in which Time may work. But Time also 
works against it, for Time, in changing the social and 
material condition of a people, makes the old political 
arrangements as they descend from one generation to 
another a less adequate expression of their political 
needs. Nobody now discusses the old problem of the 
Best Form of Government, because everybody now ad- 
mits that the chief merit of any form is to be found in its 
suitability to the conditions and ideas of those among 
whom it prevails. Now if the conditions of a country 
change, if the balance of power among classes, the 
dominant ideas of reflective men, the distribution of 
wealth, the sources whence wealth flows, the duties ex- 
pected from the administrative departments of govern- 
ment, all become different, while the form and constitu- 
tionally-prescribed methods of government remain un- 
modified, it is clear that flaws in the Constitution will be 
revealed which were previously unseen, and problems 
will arise with which its arrangements cannot cope. 
The remedy is of course to amend the Constitution. 
But that is just what may be impossible, because the 
requisite majority may be unattainable ; and the oppo- 
nents of amendment, entrenched behind the ramparts of 
an elaborate procedure, may succeed in averting changes 
which the safety of the community demands. The pro- 
visions that were meant to give security may now be 
dangerous, because they stand in the way of natural 
development. 

Even where no strong party interest is involved it 
may be hard to pass the amendments needed. The his- 



132 FLEXIBLE AND RIGID CONSTITUTIONS 

tory of the United States again supplies a case in point. 
Two defects in its Constitution are admitted by most 
political thinkers. One is the absence of power to estab- 
lish a uniform law of marriage and divorce over the 
whole Union. The other is the method of conducting 
the election of a President, a method which in 1876 
brought the country to the verge of civil war, and may 
fevery four years involve the gravest risks. Yet it has 
been found impossible to procure any amendment on 
either point, because an enormous force of united public 
opinion is needed to ensure the concurrence of two- 
thirds of both Houses of Congress and three-fourths of 
the States. The first of these two changes excites no 
sufficient interest among politicians to make them care 
to deal with it. The second is neglected, because no one 
has a clear view of what should be substituted, and 
neither party feels that it has more to gain than has the 
other by grappling with the problem. 

A historical comparison of the two types as regards 
the smoothness of their working, and the consequent 
tendency of one or other to secure a quiet life to the 
State, yields few profitable results, because the circum- 
stances of different nations are too dissimilar to enable 
close parallels to be drawn, and because much depends 
upon the skill with which the provisions of each particu- 
lar instrument have been drawn and upon the greater or 
less particularity of those provisions. The present Con- 
stitution of France, for instance, is contained in two 
very short and. simple documents, which determine only 
the general structure of the government, and are in size 
not one-twentieth of the Federal Constitution of Switzer- 
land. Hence it follows that a far freer play is left to the 
legislature and executive in France than in Switzerland ; 
and that these two authorities have in the former State 
more power of meeting any change in the conditions of 
the country, and also more power of doing harm by 
hasty and unwise action, than is permitted in the latter. 
As Adaptability is the characteristic merit and insecurity 



FLEXIBLE AND RIGID CONSTITUTIONS 193 

the characteristic defect of a Flexible Constitution, so 
the drawback which corresponds to the Durability of 
the Rigid is its smaller capacity for meeting the changes 
and chances of economic, social and political conditions. 
A provision strictly defining the structure of the govern- 
ment may prevent the evolution of a needed organ. A 
prohibition debarring the legislature from passing cer- 
tain kinds of measures may prove unfortunate when 
a measure of that kind would be the proper remedy. 
Every security has its corresponding disadvantage. 

XIII. The Interpretation of Rigid Constitutions. 

A well-drawn Rigid Constitution will confine itself to 
essentials, and leave many details to be filled in subse- 
quently by ordinary legislation and by usage. But (as 
already observed) even the best-drawn instrument is sure 
to have omitted some things which ought to have been 
expressly provided for, to have imposed restrictions 
which will prove inconvenient in practice, to contain 
provisions which turn out to be susceptible of different 
interpretations when cases occur raising a point to which 
the words of those provisions do not seem to be directly 
addressed. When any of these things happen, the autho- 
rities, legislative and executive, who have to work the 
Constitution find themselves in a difficulty. Steps seem 
called for which the Constitution either does not give 
power to do, or forbids to be done, or leaves in such 
doubt as to raise scruples and controversies. The autho- 
rities, or the nation itself, have then three alternative 
courses open to them. The first is to submit to the re- 
strictions which the Constitution imposes, and abandon 
a contemplated course of action, though the public in- 
terest demands it. This is disagreeable, but if the case is 
not urgent, may be the best course, though it tends to the 
disparagement of the Constitution itself. The second 
course is to amend the Constitution : and it is obviously 
the proper one, if it be possible. But it may be practically 
13 



194 FLEXIBLE AND RIGID CONSTITUTIONS 

impossible, because the procedure for passing an amend- 
ment may be too slow, the need for action being urgent, 
or because the majority that can be secured for amend- 
ment, even if large, may be smaller than the Constitution 
prescribes. The only remaining expedient is that which 
is euphemistically called Extensive Interpretation, but 
may really amount to Evasion. Evasion, pernicious as 
it is, may give a slighter shock to public confidence than 
open violation, as some have argued that equivocation 
leaves a man's conscience less impaired for future use 
than does the telling of a downright falsehood. Cases 
occur in which the Executive or the Legislature profess 
to be acting under the Constitution, when in reality 
they are stretching it, or twisting it, i.e. are putting a 
forced construction upon its terms, and affecting to 
treat that as being lawful under its terms which the 
natural sense of the terms does not justify. The ques- 
tion follows whether such an evasion will be held legal, 
i.e. whether acts done in virtue of such a forced construc- 
tion as aforesaid will be deemed constitutional, and will 
bind the citizens as being legally done. This will evi- 
dently depend on a matter we have not yet considered, 
but one of profound importance, viz. the authority 
in whom is lodged the right of interpreting a Rigid 
Constitution. 

On this point there is a remarkable diversity of theory 
and practice between countries which follow the English 
and countries which follow the Roman law. The English 
attribute the right to the Judiciary. As a constitutional 
instrument is a law, distinguished from other laws only 
by its higher rank, principle suggests that it should, like 
other laws, be interpreted by the legal tribunals, the last 
word resting, as in other matters, with the final Court of 
Appeal. This principle of referring to the Courts all 
questions of legal interpretation may be said to be in- 
herent in the English Common Law, and holds the field 
in all countries whose systems are built upon the founda- 
tion of that Common Law. In particular, it holds good 



FLEXIBLE AND RIGID CONSTITUTIONS 195 

in the United Kingdom and in the United States. As the 
British Parliament can alter any part of the British 
Constitution at pleasure, the principle is of secondary 
political importance in England, for when any really 
grave question arises on the construction of a constitu- 
tional law it is dealt with by legislation. However, the 
action of the Courts in construing the existing law is 
watched with the keenest interest when questions arise 
which the Legislature refuses to deal with, such, for 
instance, as those that affect the doctrine and discipline 
of the Established Church. So in the seventeenth cen- 
tury, when constitutional questions were at issue between 
the King and the House of Commons, which it was im- 
possible to settle by statute, because the king would 
have refused consent to bills passed by the Commons, 
the power of the Judges to declare the rules of the 
ancient Constitution was of great significance. In the 
United States, where Congress cannot alter the Con- 
stitution, the function of the Judiciary to interpret the 
will of the people as set forth in the Constitution has 
attained its highest development. The framers of that 
Constitution perhaps scarcely realized what the effect 
of their arrangements would be. More than ten years 
passed before any case raised the point ; and when the 
Supreme Court declared that an Act of Congress might 
be invalid because in excess of the power granted by 
the Constitution, some surprise and more anger were 
expressed. The reasoning on which the Court proceeded 
was, however, plainly sound, and the right was therefore 
soon admitted. Canada and Australia have followed the 
English doctrine, so the Bench has a weighty function 
under the constitutions of both those Federations. 

On the European Continent a different view prevails, 
and the Legislature is held to be the judge of its own 
powers under the Constitution, so that no Court of law 
may question the authority of a statute passed in due 
form. Such is the rule in Switzerland. There, as in 
most parts of the European Continent, the separation of 



196 FLEXIBLE AND RIGID CONSTITUTIONS 

the Judiciary from the other two powers has been less 
complete than in England, and the deference to what 
Englishmen and Americans call the Rule of Law less 
profound. The control over governmental action which 
the right of interpretation implies seems to the Swiss 
too great, and too political in its nature, to be fit for a 
legal tribunal. It is therefore vested in the National 
Assembly, which when a question is raised as to the con- 
stitutionality of a Federal Statute or Executive Act, or 
as to the transgression of the Federal Constitution by a 
Cantonal Statute, is recognized as the authority com- 
petent to decide. The same doctrine seems to prevail in 
the German Empire, though the point is there not quite 
free from doubt, and also in the Austrian Monarchy, in 
France, and in Belgium. In the Orange Free State, liv- 
ing under Roman-Dutch law, the Bench, basing itself on 
American precedents, claimed the right of authoritative 
interpretation, but the" Legislature hesitated to admit it. 

American lawyers conceive that the strength and value 
of a Rigid Constitution are greatly reduced when the 
Legislature becomes the judge of its own powers, en- 
titled after passing a statute which really transgresses 
the Constitution to declare that the Constitution has in 
fact not been transgressed. The Swiss, however, deem 
the disadvantages of the American method still more 
serious, for they hold that it gives the last word to the 
judges, persons not chosen for or fitted for such a func- 
tion, and they declare that in point of fact public opinion 
and the traditions of their government prevent the power 
vested in their National Assembly from being abused. 
And it must be added that the Americans have so far 
felt the difficulty which the Swiss dwell on, that the 
Supreme Court has refused to pronounce upon the ac- 
tion of Congress in ' purely political cases,' i. c. cases 
where the arguments used to prove or disprove the con- 
formity to the Constitution of the action taken by Con- 
gress are of a political nature. 

Returning to the question of legislative action alleged 



FLEXIBLE AND RIGID CONSTITUTIONS 197 

to transgress the Constitution, it is plain that if the 
Legislature be, as in Switzerland, the arbiter of its own 
powers, so that the validity of its acts cannot be ques- 
tioned in a court of law, there is no further difficulty. But 
where that validity can be challenged, as in the United 
States, it might be supposed that every unconstitutional 
statute will be held null, and that thus any such stretch- 
ing or twisting of the Constitution as has been referred 
to will be arrested. But experience has shown that where 
public opinion sets strongly in favour of the line of con- 
duct which the Legislature has followed in stretching 
the Constitution, the Courts are themselves affected by 
that opinion, and go as far as their legal conscience and 
the general sense of the legal profession permit — pos- 
sibly sometimes even a little farther — in holding valid 
what the Legislature has done. This occurs most fre- 
quently where new problems of an administrative kind 
present themselves. The Courts recognize, in fact, that 
' principle of development ' which is potent in politics as 
well as in theology. Human affairs being what they are, 
there must be a loophole for expansion or extension in 
some part of every scheme of government ; and if the 
Constitution is Rigid, Flexibility must be supplied from 
the minds of the Judges. Instances of this kind have 
occurred in the United States, as when some twenty 
years ago the Supreme Court recognized a power in a 
State Legislature to deal with railway companies not 
consistent with the opinions formerly enounced by the 
Court, though they disclaimed the intention of over- 
ruling those opinions 1 . 

1 A still more remarkable instance has been furnished, while these pages are 
passing through the press (June, 1901), by the decisions of the Supreme Court of 
the United States in the group of cases which arose out of questions relating to 
the applicability of the Federal Constitution to the island of Puerto Rico, recently 
ceded by Spain to the United States. The Court had to deal with a constitutional 
question raising large issues of national policy regarding the application of the 
Federal Constitution to territories acquired by conquest and treaty: and its judge- 
ments in these cases (given in every case by majorities only) have expanded the 
Constitution, i.e. have declared it to have a meaning which may well be its true 
meaning, but which was not previously ascertained, and certainly by many lawyers 
not admitted, to be its true meaning. 



198 FLEXIBLE AND RIGID CONSTITUTIONS 

Does not a danger lurk in this ? May not a majority 
in the Legislature, if and when they have secured the 
concurrence, honest or dishonest, of the Judiciary, prac- 
tically disregard the Constitution? May not the Execu- 
tive conspire with them to manipulate places on the 
highest Court of Appeal, so as to procure from it such 
declarations of the meaning of the Constitution as the 
conspiring parties desire? May not the Constitution 
thus be slowly nibbled away? Certainly. Such things 
may happen. It is only public opinion and established 
tradition that will avail to prevent them. But it is upon 
public opinion, moulded by tradition, that all free govern- 
ments must in the last resort rely. 

XIV. Democracies and Rigid Constitutions. 

The mention of traditions, that is to say of the mental 
and moral habits of judgement which a nation has 
formed, and which guide its political life, as the habits of 
each one of us guide his individual life, suggests an in- 
quiry as to the effect of Documentary Constitutions on 
the ideas and habits of those who live under them. I will 
not venture on broad generalizations, because it is hard 
to know how much should be assigned to the racial ten- 
dencies of a nation, how much to the circumstances of its 
history, how much to its institutions. But the cases of 
Switzerland and the United States seem to show that the 
tendency of these instruments is to foster a conservative 
temper. The nation feels a sense of repose in the settled 
and permanent form which it has given to its govern- 
ment. It is not alarmed by the struggles of party in the 
legislature, because aware that that body cannot disturb 
the fundamental institutions. Accordingly it will often, 
contracting a dislike to change, negative the amendments 
which the legislature submits to it. This happens in 
Switzerland, as already observed ; and the people of the 
United States, though liable to sudden and violent waves 
of political opinion, show so little disposition to innovate 



FLEXIBLE AND RIGID CONSTITUTIONS 199 

that Congress has not proposed any amendments to the 
State Legislatures since 1870 1 . I may be reminded that 
the Constitutions of the several States of the Union are 
frequently recast or amended in detail. This is true, but 
the cause lies not so much in a restless changefulness as 
in the low opinion entertained of the State Legislatures. 
The distrust felt for these bodies induces the people to 
take a large part of what is really ordinary legislation 
out of their hands, and to enact themselves, in a form of a 
Constitution, the laws they wish. State Constitutions 
now contain many regulations on matters of detail, and 
have thus, in most States, ceased to be considered funda- 
mental instruments of government. To revise or amend 
them has become merely a convenient method of direct 
popular legislation, similar to the Swiss Popular Initia- 
tive and Referendum. But the fundamental parts of 
these instruments are but slightly changed. 

In estimating the influence of Flexible Constitutions 
in forming the political character of a nation, in stimu- 
lating its intelligence and training its judgement, it was 
remarked that only the governing class, a very small 
part of the nation even in democratic countries, are di- 
rectly affected. This is less true of a Rigid Constitution. 
While a Flexible Constitution like the Roman or English 
requires much knowledge, tact and courage to work it, 
and develops these qualities in those who bear a part in 
the working of it, as legislators or officials or magis- 
trates, a Rigid Constitution tends rather to elicit in- 
genuity, subtlety and logical acumen among the corre- 
sponding class of persons. It is apt to give a legal cast 
to most questions, and sets a high, perhaps too high, 
premium on legal knowledge and legal capacity. But it 
goes further. It affects a much larger part of the com- 
munity than the Flexible Constitution does. Few even 
of the governing class can be expected to understand the 
latter. The average Roman voter in the comitia in the 

1 Something must, however, be allowed for the provisions which require large 
majorities for any amendment of the Constitution. 



200 FLEXIBLE AND RIGID CONSTITUTIONS 

days of Cicero, like the average English voter at the 
polls to-day, probably knew but little about the legal 
structure of the government he lived under. But the 
average Swiss voter, like the average native American 
voter (for the recent immigrant is a different sort of 
creature), understands his government, can explain it, 
and has received a great deal of education from it. 
Talk to a Swiss peasant in Solothurn or Glarus, and 
you will be astonished at his mastery of principles as 
well as his knowledge of details. Very likely he has 
a copy of the Federal Constitution at home. He has 
almost certainly learnt it at school. It disciplines his 
mind much as the Shorter Catechism trained the Presby- 
terian peasantry of Scotland. As there is no mystery 
about a scheme of government so set forth, it may be 
thought that he will have little reverence for that 
which he comprehends. It is, however, his own. He 
feels himself a part of the Government, and seems 
to be usually imbued with a respect even for the letter 
of the instrument, a wholesome feeling, which helps 
to form that law-abiding spirit which a democracy 
needs. 

A documentary Constitution appears to the people as 
the immediate outcome of their power, the visible image 
of their sovereignty. It is commended by a simplicity 
which contrasts favourably with the obscure technicali- 
ties of an old common law Constitution. The taste of 
the multitude, and especially of that class which out- 
numbers all other classes, the thinly-educated persons 
whose book-knowledge is drawn from dry manuals in 
mechanically-taught elementary schools, and who in after 
life read nothing but newspapers, or penny weeklies, or 
cheap novels — the taste of this class, and that not merely 
in Europe but perhaps even more in the new countries, 
such as Western America and the British Colonies, is 
a taste for ideas level with their comprehension, senti- 
ments which need no subtlety to be appreciated, pro- 
positions which can be expressed in unmistakable posi- 



FLEXIBLE AND RIGID CONSTITUTIONS 201 

tives and negatives. Thus the democratic man (as Plato 
would call him) is pleased to read and know his Con- 
stitution for himself. The more plain and straight- 
forward it is the better, for so he will not need to ask 
explanations from any one more skilled. And a good 
reason for this love of plainness and directness may be 
found in the fact that the twilight of the older Consti- 
tutions permitted abuses of executive power against 
which the express enactments of a Rigid Constitution 
protect the people. Magna Charta, the Bill of Rights, 
the Twelve Tables, were all fragments, or rather instal- 
ments, of such a Constitution, rightly dear to the com- 
mons, for they represented an advance towards liberty 
and order 1 . 

The theory of democracy assumes that the multitude 
are both competent and interested ; competent to under- 
stand the structure of their government and their own 
functions and duties as ultimately sovereign in it, in- 
terested as valuing those functions, and alive to the 
responsibility of those duties. A Constitution set out 
in black and white, contained in a concise document 
which can be expounded and remembered more easily 
than a Constitution growing out of a long series of 
controversies and compromises, seems specially fitted 
for a country where the multitude is called to rule. Only 
memory and common sense are needed to master it. It 
can lay down general principles in a series of broad, 
plain, authoritative propositions, while in the case of the 
' historical Constitution ' they have to be gathered from 
various sources, and expressed, if they are to be ex- 
pressed correctly, in a guarded and qualified form. Now 
the average man, if intelligent enough to comprehend 
politics at all, likes general principles. Even if, as some 
think, he overvalues them, yet his capacity for absorbing 
them gives him a sort of comprehension of his govern- 

] The 'People's Charter' of 1848 was called for as another such onward step. 
Its Six Points were to be the basis of a democratic reconstruction of the govern- 
ment. 



202 FLEXIBLE AND RIGID CONSTITUTIONS 

ment and attachment to it which are solid advantages in 
a large democracy. 

Constitutions of this type have usually arisen when 
the mass of the people were anxious to secure their 
rights against the invasions of power, and to construct 
a frame of government in which their voices should be 
sure to prevail. They furnish a valuable protection for 
minorities which, if not liable to be overborne by the 
tyranny of the mass, are at any rate liable to be dis- 
heartened into silence by superior numbers, and so need 
all the protection which legal safeguards can give them. 
Thus they have generally been accounted as institutions 
characteristic of democracy, though the cases of Ger- 
many and Japan show that this is not necessarily true. 

A change of view has, however, become noticeable 
within the last few years. In the new democracies of 
the United States and the British self-governing Colo- 
nies — and the same thing is true of popularly governed 
countries in Europe — the multitude no longer fears 
abuses of power by its rulers. It is itself the ruler, 
accustomed to be coaxed and flattered. It feels no 
need for the protection which Rigid Constitutions give. 
And in the United States it chafes under those restric- 
tions on legislative power, embodied in the Federal Con- 
stitution or State Constitution (as the case may be), 
which have surrounded the rights of property and the 
obligation of subsisting contracts with safeguards ob- 
noxious, not only to the party called Socialist, but to 
reformers of other types. As these safeguards are some- 
times thought to prevent the application of needed 
remedies and to secure impunity for abuses which have 
become entrenched behind them, the aforesaid consti- 
tutional provisions have incurred criticism and censure 
from various sections, and many attempts have been 
made by State legislatures, acting at the bidding of those 
who profess to control the votes of working men, to dis- 
regard or evade the restrictions. These attempts are 
usually defeated by the action of the Courts, whence it 



FLEXIBLE AND RIGID CONSTITUTIONS 203 

happens that both the Federal Constitution and the func- 
tions of the Judiciary are often attacked in the country 
which was so extravagantly proud of both institutions 
half a century ago. This strife between the Bench as the 
defender of old-fashioned doctrines (embodied in the 
provisions of a Rigid Constitution (Federal or State)) 
and a State Legislature acting at the bidding of a large 
section of the voters is a remarkable feature of con- 
temporary America. 

The significance of this change in the tendency of 
opinion is enhanced when we find that a similar change 
has been operative in the opposite camp. The very con- 
siderations which have made odious to some American 
reformers those restrictions on popular power, behind 
which the great corporations and the so-called ' Trusts ' 
(and capitalistic interests generally) have entrenched 
themselves, have led not a few in England to applaud the 
same restrictions as invaluable safeguards to property. 
Realizing, a little late in the day, that political power has 
in England passed from the Few to the Many, fearing 
the use which the Many may make of it, and alarmed by 
the precedents which land legislation in Ireland has set, 
they are anxious to tie down the British legislature, while 
yet there is time, by provisions which shall prevent in- 
terference with a man's control over what he calls his 
own, shall restrict the taking of private property for pub- 
lic uses, shall secure complete liberty of contracting, 
and forbid interference with contracts already made. 
Others in England, in their desire to save political insti- 
tutions which they think in danger, propose to arrest 
any sudden popular action by placing those institutions 
in a class by themselves, out of the reach of the regular 
action of Parliament. In other words, the establishment 
in Britain of a species of Rigid Constitution has begun 
to be advocated, and advocated by the persons least in- 
clined to trust democracy. ' Imagine a country ' — so 
they argue — ' with immense accumulated wealth, and a 
great inequality of fortunes, a country which rules a vast 



204 FLEXIBLE AND RIGID CONSTITUTIONS 

and distant Empire, a country which depends for her 
prosperity upon manufactures liable to be injured by 
bad legislation, and upon a commerce liable to be im- 
perilled by unskilful diplomacy, and suppose that such a 
country should admit to power a great mass of new and 
untrained voters, to whose cupidity demagogues will 
appeal, and upon whose ignorance charlatans will prac- 
tise. Will not such a country need something better for 
her security than a complicated and delicately-poised 
Constitution resting largely on mere tradition, a Consti- 
tution which can at any moment be fundamentally altered 
by a majority, acting in a revolutionary transient spirit, 
yet in a perfectly legal way? Ought not such a country 
to place at least the foundations of her system and the 
vital principles of her government out of the reach of an 
irresponsible parliamentary majority, making the pro- 
cedure for altering them so slow and so difficult that 
there will be time for the conservative forces to rally to 
their defence before any fatal changes can be carried 
through? ' 

I refer to these arguments, which were frequently 
heard in England during some years after the extension 
of the suffrage in 1884 1 , with no intention of discuss- 
ing their soundness, for that belongs to politics, but 
solely for the sake of illustrating how different are the 
aspects which the same institution may come to wear. 
A century ago revolutionists were the apostles, con- 
servatives the enemies, of Rigid Constitutions. Even 
forty years ago it was the Flexibility of the historical 
British Constitution that was its glory in the eyes of 
admirers of the British system, its Rigidity that was the 
glory of the American Constitution in the eyes of fervent 
democrats. 

1 They are much less heard now (1900), partly because the public mind is oc- 
cupied with matters of a different order, partly because the political party which 
professes to be opposed to innovation has latterly commanded a large majority in 
the British Legislature. 



FLEXIBLE AND RIGID CONSTITUTIONS 205 

XV. The Future of the Flexible and Rigid Types. 

A few concluding reflections may be devoted to the 
probable future of the two types that have been occu- 
pying our minds. Are both likely to survive? or if 
not, which of the two will prevail and outlast the other ? 

Two reasons suggest themselves for predicting the 
prevalence of the Rigid type. One is that no new Flex- 
ible Constitutions have been born into the world for 
many years past, unless we refer to this class those of 
some of the British self-governing colonies 1 . The other 
is that no country now possessing a Rigid Constitution 
seems likely to change it for a Flexible one. The foot- 
steps are all the other way. Flexible Constitutions have 
been turned into Rigid ones. No Rigid one has become 
Flexible 2 . Even those who complain of the undue con- 
servatism of the American Constitution do not propose 
to abolish that Constitution altogether, nor to place 
it at the mercy of Congress, but merely to expunge parts 
of it, though no doubt parts which (such as the powers 
of the Judiciary) have been vital to its working. 

Against these two arguments may be set the fact that 
popular power has in most countries made great ad- 
vances, and does not need the protection of an instru- 
ment controlling the legislature and the executive, which 
are already only too eager to bend to every breeze of 
popular opinion. If we lived in a time of small States, as 
the ancients did, the people would themselves legislate in 
primary assemblies. Why then, it may be asked, should 
they care to limit the powers of legislatures which are 
completely at their bidding? The old reasons for hold- 
ing legislatures and executives in check have disap- 
peared. Why should the people, safe and self-confident, 
impose a check on themselves ? In this there may be 

1 The British self-governing Colonies (except the two great federations, see 
ante, pp. 168-g) have constitutions which may be changed in all or nearly all 
points by their respective legislatures, but they are not independent States, and 
the power of the legislatures to alter the constitutions is therefore not complete. 

2 The Constitution of Italy, already referred to, is scarcely an exception. 



206 FLEXIBLE AND RIGID CONSTITUTIONS 

some truth. But it must be remembered that since 
modern States are larger than those of former times, 
and tend to grow larger by the absorption of the small 
ones, legislatures are necessary, for business could not 
be carried on by primary popular assemblies, even with 
the aid of ' plebiscites.' Now legislatures are nowhere 
rising in the respect and confidence of the people, and it 
is . therefore improbable that any nation which has a 
documentary Constitution, holding its legislature in sub- 
jection, will abolish it for the benefit of the legislature, 
although it may wish to do more and more of its legisla- 
tion by the direct action of the people, as it does in 
Switzerland and in some of the States of the American 
Union. On the whole, therefore, it seems probable that 
Rigid Constitutions will survive in countries where they 
already exist. 

Two other questions remain. Will existing Flexible 
Constitutions remain? Are such new States as may 
arise likely to adopt Constitutions of the Rigid or of the 
Flexible type? 

An inquiry whether countries which, like Hungary 
and Britain, now live under ancient Flexible Constitu- 
tions will exchange them for new documentary ones 
would resolve itself into a general study of the political 
prospects of those countries. All that can be said, apart 
from such a study, is that our age shows no such general 
tendency to change in this respect as did the revolu- 
tionary and post-revolutionary era of the first sixty 
years of the nineteenth century. Still, a few lines may 
be given to considering whether any such alteration of 
form is likely to pass on the Constitution which has long 
had the unquestioned pre-eminence in age and honour, 
that, namely, of the United Kingdom, which is really 
the ancient Constitution of England so expanded as to 
include Scotland and Ireland. 

So far as internal causes and forces are concerned, 
this seems improbable. The people are not likely, de- 
spite the alarms felt and the advice tendered by the 



FLEXIBLE AND RIGID CONSTITUTIONS 207 

uneasy persons to whom reference has already been 
made, to part with the free play and elastic power of 
their historical Cabinet and Parliamentary system. Eng- 
land has never yet made any constitutional change either 
on grounds of theory or from a fear of evils that might 
arise in the future. All the modifications of the frame of 
government have been gradual, and induced by actually 
urgent needs.. 

But there is another set of causes and forces at work 
which may, as some think, affect the question. It has 
already been noted that Rigid Constitutions have arisen 
where States originally independent or semi-indepen- 
dent have formed Confederations. These States, finding 
the kind of connexion which treaties had created insuffi- 
cient for their needs, have united themselves into one 
Federal State, and expressed their new and closer rela- 
tion in the form of a documentary Constitution. Such a 
Constitution has invariably been raised above the legis- 
lature it was creating, because the States which were 
uniting wished to guard jealously such autonomy as they 
respectively retained, and would not leave those rights 
at the mercy of the legislature. This happened in the 
United States in 1787-9, in Switzerland after the fall of 
Napoleon, in Germany when the North German Con- 
federation and German Empire were created in 1866 
and 1870-71. It has happened also in Canada and in 
Australia. 

Two proposals of a federalizing nature have recently 
been made regarding the United Kingdom, one to split 
it up into a Federation of four States, the other to make 
it a member of a large Federation. Neither seems 
likely to be carried out at present, but both are worth 
mentioning, because they illustrate the occasions on 
which, and methods by which, constitutions may be 
transformed. The United Kingdom stands to its self- 
governing Colonies in what is practically a permanent 
alliance as regards all foreign relations, these relations 
being managed by the mother country, with complete 



206 FLEXIBLE AND RIGID CONSTITUTIONS 

some truth. But it must be remembered that since 
modern States are larger than those of former times, 
and tend to grow larger by the absorption of the small 
ones, legislatures are necessary, for business could not 
be carried on by primary popular assemblies, even with 
the aid of ' plebiscites.' Now legislatures are nowhere 
rising in the respect and confidence of the people, and it 
is therefore improbable that any nation which has a 
documentary Constitution, holding its legislature in sub- 
jection, will abolish it for the benefit of the legislature, 
although it may wish to do more and more of its legisla- 
tion by the direct action of the people, as it does in 
Switzerland and in some of the States of the American 
Union. On the whole, therefore, it seems probable that 
Rigid Constitutions will survive in countries where they 
already exist. 

Two other questions remain. Will existing Flexible 
Constitutions remain? Are such new States as may 
arise likely to adopt Constitutions of the Rigid or of the 
Flexible type? 

An inquiry whether countries which, like Hungary 
and Britain, now live under ancient Flexible Constitu- 
tions will exchange them for new documentary ones 
would resolve itself into a general study of the political 
prospects of those countries. All that can be said, apart 
from such a study, is that our age shows no such general 
tendency to change in this respect as did the revolu- 
tionary and post-revolutionary era of the first sixty 
years of the nineteenth century. Still, a few lines may 
be given to considering whether any such alteration of 
form is likely to pass on the Constitution which has long 
had the unquestioned pre-eminence in age and honour, 
that, namely, of the United Kingdom, which is really 
the ancient Constitution of England so expanded as to 
include Scotland and Ireland. 

So far as internal causes and forces are concerned, 
this seems improbable. The people are not likely, de- 
spite the alarms felt and the advice tendered by the 



FLEXIBLE AND RIGID CONSTITUTIONS 207 

uneasy persons to whom reference has already been 
made, to part with the free play and elastic power of 
their historical Cabinet and Parliamentary system. Eng- 
land has never yet made any constitutional change either 
on grounds of theory or from a fear of evils that might 
arise in the future. All the modifications of the frame of 
government have been gradual, and induced by actually 
urgent needs.. 

But there is another set of causes and forces at work 
which may, as some think, affect the question. It has 
already been noted that Rigid Constitutions have arisen 
where States originally independent or semi-indepen- 
dent have formed Confederations. These States, finding 
the kind of connexion which treaties had created insuffi- 
cient for their needs, have united themselves into one 
Federal State, and expressed their new and closer rela- 
tion in the form of a documentary Constitution. Such a 
Constitution has invariably been raised above the legis- 
lature it was creating, because the States which were 
uniting wished to guard jealously such autonomy as they 
respectively retained, and would not leave those rights 
at the mercy of the legislature. This happened in the 
United States in 1787-9, in Switzerland after the fall of 
Napoleon, in Germany when the North German Con- 
federation and German Empire were created in 1866 
and 1870-71. It has happened also in Canada and in 
Australia. 

Two proposals of a federalizing nature have recently 
been made regarding the United Kingdom, one to split 
it up into a Federation of four States, the other to make 
it a member of a large Federation. Neither seems 
likely to be carried out at present, but both are worth 
mentioning, because they illustrate the occasions on 
which, and methods by which, constitutions may be 
transformed. The United Kingdom stands to its self- 
governing Colonies in what is practically a permanent 
alliance as regards all foreign relations, these relations 
being managed by the mother country, with complete 



208 FLEXIBLE AND RIGID CONSTITUTIONS 

local legislative and administrative autonomy both for 
each Colony and for the mother country 1 . Many think 
that this alliance is not a satisfactory, and cannot well 
be a permanent, form of connexion, because at present 
almost the whole burden — and it is a heavy one — of 
naval and military defence falls upon Britain, while the 
Colonies have no share in the control of foreign rela- 
tions, and may find themselves engaged, in a war, or 
bound by a treaty, regarding which they have not been 
consulted. Thus the idea has grown up that some sort 
of confederation ought to be established, in which there 
would be a Federal Assembly, containing representa- 
tives of the (at present seven) component States 2 , and 
controlling those matters, such as foreign relations and 
a system of military and naval armaments, which would 
be common to the whole body. If this idea were ever 
to take practical shape, it would probably be carried out 
by a statute establishing a new Constitution for the de- 
sired Confederation, and creating the Federal Assembly. 
Such a statute would be passed by the Parliament of 
the United Kingdom, and (being expressed to be opera- 
tive over the whole Empire) would have full legal effect 
for the Colonies as well as for the mother country. Now 
if such a statute assigned to the Federal Assembly cer- 
tain specified matters, as for instance the control of 
imperial defence and expenditure or (let us say) legisla- 
tion regarding merchant shipping and copyright, taking 
them away from the present and future British Parlia- 
ment as well as from the parliaments of the several 
Colonies, and therewith debarring the British Parlia- 
ment from recalling or varying the grant except by the 

1 This autonomy is, however, not legally complete as regards the Colonies, for 
the mother country may, though she rarely does, disallow colonial legislation. In 
Canada the Dominion Legislature cannot affect the rights of the several Pro- 
vinces, the power to do so remaining with the Imperial Parliament which passed 
the Confederation Act of 1867. So too under the Constitution of the Australian 
Commonwealth the rights of each colony are protected by the instrument of 
federation. 

2 Viz. the United Kingdom, the two great Colonial Federations (Canada and 
Australia), and four comparatively small self-governing Colonies, viz. New Zea- 
land, Cape Colony, Natal, and Newfoundland. 



FLEXIBLE AND RIGID CONSTITUTIONS 209 

consent of the several Colonies (or perhaps of the Fede- 
ral Assembly itself), it is clear that the now unlimited 
powers of the British Parliament would have been re- 
duced. A part of the future British Constitution would 
have been placed beyond its control: and to that extent 
the British Constitution would have ceased to be a Flex- 
ible one within the terms of the definition already given 1 . 
Parliament would not be fully sovereign; and if either the 
British or a Colonial Parliament passed laws inconsist- 
ent with statutes passed by the Federal Assembly in 
matters assigned to the latter, the Courts would have 
to hold the transgressing laws invalid. 

Doubtless, if such a Federal Constitution were estab- 
lished, a Supreme Court of Appeal on which some colo- 
nial judges should sit would be thought essential to it, 
and questions arising under the Federation Act (as to the 
extent of the powers of the Federal Assembly and other- 
wise) would go before it, sometimes in the first instance, 
sometimes by way of appeal from inferior Courts. 

The other proposal is to turn the United Kingdom 
itself into a Federation by erecting England, Scotland, 
Ireland, and Wales into four States, each with a local 
legislature and ministry controlling local affairs, while re- 
taining the Imperial Parliament as a Central or Federal 
Legislature for such common affairs as belong in the 
United States to Congress, and in Canada to the Domi- 
nion Parliament, and in Australia to the Commonwealth 
Parliament. If such a scheme provided, as it probably 
would provide, for an exclusive assignment to the local 
legislatures of local affairs, so as to debar the Imperial 
Parliament from interfering therewith, it would destroy 
the present Flexible British Constitution and substitute 

1 It may of course be observed (see p. 175, ante) that the British Parliament, 
while it continues to be elected as now, may be unable to divest itself of its general 
power of legislating for the whole Empire, and might therefore repeal the Act by 
which it had resigned certain matters to the Federal Assembly and resume them 
for itself. This is one of those apices iuris of which the Romans say non sunt 
iura : and in point of fact no Parliament can be supposed capable of the breach 
of faith which such a repeal would involve. The supposed legal difficulty might, 
however, be avoided by some such expedient as that previously suggested. 

14 



210 FLEXIBLE AND RIGID CONSTITUTIONS 

a Rigid one for it. Care would have to be taken to use 
proper legal means of extinguishing the general sove- 
reign authority of the present Parliament, as for instance 
by directing the elections for the new Federal Legisla- 
ture to be held in such a way as to effect a breach of con- 
tinuity between it and the old Imperial Parliament, so 
that the latter should absolutely cease and determine 
when the new Constitution came into force. Upon this 
scheme also it would be for the Courts of Law to deter- 
mine whether in any given case either the Federal or one 
of the Local Legislatures had exceeded its powers. 

Some persons have proposed to combine both these 
proposals so as to make the four parts of the United 
Kingdom each return members, along with the Colonies, 
to a Pan-Britannic Federal Legislature, and to place 
the local legislatures of Scotland, for instance, or Wales, 
in a line with those of the Australian Commonwealth or 
New Zealand. On this plan also the British Constitu- 
tion would become a Rigid one. 

The difficulties, both legal and practical, with which 
these proposals, taken either separately or in conjunc- 
tion, are surrounded, are greater than those who advo- 
cate them have as yet generally perceived. 

XVI. Are New Constitutions Likely to Arise ? 

The remaining question, also somewhat speculative, 
relates to the prospects the future holds out to us of 
seeing new States with new Constitutions arise. 

New States may arise in one of two ways, either by 
their establishment in new countries where settled and 
civilized government has been hitherto unknown, or by 
the breaking up of existing States into smaller ones, 
fragments of the old. 

The opportunities for the former process have now 
been sadly curtailed through the recent appropriation 
by a few great civilized States of some two-thirds of the 
surface of the globe outside Europe. North America is 



FLEXIBLE AND RIGID CONSTITUTIONS 211 

in the hands of three such States. Central and South 
America, though the States are all weak and most of 
them small in population, are so far occupied that no 
space is left. The last chance disappeared when the 
Argentine Republic asserted a claim to Patagonia, where 
it would have been better that some North European 
race should have developed a new colony, as the Welsh 
settlers were doing on a small scale. Australia is occu- 
pied. Asia, excluding China and Japan in the East, and 
the two dying Musulman powers in the West, is virtu- 
ally partitioned between Britain and Russia, with France 
holding a bit of the south-east corner. So Africa has 
now been (with trifling exceptions) divided between five 
European Powers (Portugal, England, France, Ger- 
many, Italy). Thus there is hardly a spot of earth left 
on which a new independent community can establish 
itself, as the Greeks founded a multitude of new com- 
monwealths in the eighth and seventh centuries b. c, and 
as the Teutonic invaders founded kingdoms during the 
dissolution of the Roman Empire. 

If we turn to the possibilities of new States arising 
from the ruins of existing ones, whether by revolt or by 
peaceful separation, the prospect is not much more en- 
couraging. There is indeed Turkey. Five out of the 
six new States that have arisen in Europe during 
this century have been carved out of the territories 
she claimed — viz. Greece, Rumania, Servia, Bulgaria, 
Montenegro : and there is material for one or two more 
in Europe and possibly for one or two in Asia, though it 
is more probable that both the Asiatic and European 
dominions of the Sultan will be partitioned among exist- 
ing States than that new ones will spring out of them. 
The ill-compacted fabric of the Austro-Hungarian mon- 
archy may fall to pieces. Parts of the Asiatic dominions 
of Russia may possibly (though in a comparatively dis- 
tant future) become independent of the old Muscovite 
motherland, and the less civilized among the republics 
of Central and South America may be broken into parts 



212 FLEXIBLE AND RIGID CONSTITUTIONS 

or combined into new States, though the saying ' plus 
cela change, plus c'est la meme chose ' is even more true 
of those countries than of that to which it was originally 
applied, and gives little hope of interesting novelties. 
But on the whole the tendency of modern times is rather 
towards the aggregation of small States than towards 
the division of large ones. Commerce and improved 
facilities of communication are factors of constantly in- 
creasing importance which work in this direction, and 
this general tendency for the larger States to absorb the 
smaller forbids us to expect the rise, within the next 
few generations, of more than a few new Constitutions 
which will provide matter for study to the historian or 
lawyer of the future. 

What type of Constitution will these new States, what- 
ever they be and whenever they come, be disposed to 
prefer? Upon this point it is relevant to observe that 
all the new States that have appeared since 1850 have 
adopted Rigid Constitutions, with the solitary exception 
of Montenegro, which has no Constitution at all, but 
lives under the paternal autocracy of the temporal ruler 
who has succeeded the ancient ecclesiastical Vladika 1 . 
Each of them, on beginning its independent life, has felt 
the need of setting out the lines of its government in a 
formal instrument which it has consecrated as funda- 
mental by placing it above ordinary legislation. Similar 
conditions are likely to surround the birth of any new 
States, similar motives to influence those who tend their 
infancy. The only cases in which a Flexible Constitution 
is likely to arise would be the division of a country hav- 
ing such a Constitution into two or more fragments, 
each of which should cleave to the accustomed system ; 
or the revolt of a people or community among whom, as 
they grow into a State, usages of government that had 
naturally sprung up might, when independence had been 
established, continue .to be observed and so ripen into a 
Constitution. The chance that either of these cases will 

1 As to Italy, however, see above, pp. 171 and 176. 



FLEXIBLE AND RIGID CONSTITUTIONS 213 

present itself is not very great. New States will more 
probably adopt documentary Constitutions, as did the 
insurgent colonies of England after 1776 and of Spain 
after 181 1, and as the Christians of South-Eastern 
Europe did when they had rid themselves of the Turk. 
Upon the whole, therefore, it would seem that the future 
is rather with Rigid Constitutions than with those of the 
Flexible type. 

It is hardly necessary to close these speculations by 
adding the warning that all prophecies in politics must 
be highly conjectural. Circumstances change, opinion 
changes ; knowledge increases, though the power of 
using it wisely may not increase 1 . 

The subtlety of nature, and especially the intricacy of 
the relations she develops between things that originally 
seemed to lie wide apart, far surpasses the calculating 
or predicting wit of man. Accordingly many things, 
both in the political arrangements of the world and in 
the beliefs of mankind, which now seem permanent may 
prove transitory. Democracy itself, though most people 
treat it as a thing likely to grow stronger and advance 
further, may suffer an eclipse. Human nature no doubt 
remains. But human nature has clothed itself in the 
vesture of every sort of institution, and may change its 
fashions as freely in the future as it has done in the past. 

1 'ATrayC* 6 naKpos Kaeapi'fyurjTos xpdvos 
<j>vei. T 3.Srika /cal <j>avevra KpvnTerai. 

Soph. Aj'ax, 646. 



NOTE TO ESSAY III 

CONSTITUTIONAL AND OTHER GOVERN- 
MENTS 

The races and nations of the world may, as respects 
the forms of Government under which they live, be dis- 
tributed into four classes : — 

I. Nations which have created and maintain permanent 
political institutions, allotting special functions to each 
organ of Government, and assigning to the citizens some 
measure of participation in the business of Government. 

In these nations we discover Constitutions in the 
proper sense of the term. To this class belong all the 
States of Europe except Russia and Montenegro, and, 
outside Europe, the British self-governing Colonies, the 
United States and Mexico, the two republics of South 
Africa, Japan and Chili, possibly also the Argentine 
Republic. 

II. Nations in which the institutions aforesaid exist in 
theory, but are seldom in normal action, because they 
are in a state ot chronic political disturbance and mostly 
ruled, with little regard to law, by military adventurers. 
This class includes the republics of Central and South 
America, with the exception of Chili, and possibly of 
Argentina, whose condition has latterly been tolerably 
stable. 

III. Nations in which, although the upper class is edu- 
cated, the bulk of the population, being backward, has 
not begun to desire such institutions as aforesaid, and 
which therefore remain under autocratic monarchies. 



NOTE TO ESSAY III 215 

To this class belong Russia and Montenegro. Japan 
has lately emerged from it : and two or three of the 
newest European States might, but for the interposition 
of other nations, have remained in it. 

IV. Nations which are^ for one reason or another, 
below the level of intellectual life and outside the sphere 
of ideas which the permanent political institutions afore- 
said presuppose and need for their proper working. 
This class includes all the remaining peoples of the world, 
from intelligent races like the Chinese, Siamese, and Per- 
sians, down to the barbarous tribes of Africa. 

Constitutions, in the sense in which the term is used 
in the preceding Essay, belong only to the first class, 
and in a qualified sense to the second. In the modern 
world they are confined to Europe and her Colonies, 
adding Japan, which has imitated Europe. In the ancient 
world they were confined to three races, Greeks, Italians, 
and Phoenicians, to whom one may perhaps add such 
races as the Lycians, who had learnt from the Greeks. 
Their range is somewhat narrower than that of law, that 
is to say, there are peoples which, like the Musulmans 
of Turkey, Egypt, and Persia, have law, but have no 
Constitutions. 

No race that has ever lived under a lost Constitutional 
Government has permanently lost it, except those parts 
of the Roman Empire which now form part of the Turk- 
ish Empire ; and the Roman Empire, though its Govern- 
ment never ceased to be in a certain sense constitutional, 
ultimately extinguished the habit of self-government 
among its subjects. 



IV 



THE ACTION OF CENTRIPETAL 

AND CENTRIFUGAL FORCES ON 

POLITICAL CONSTITUTIONS * 

As every government and every constitution is the 
result of certain forces and tendencies which bring men 
together in an organized community, so every govern- 
ment and every constitution tends when formed to hold 
men together thenceforth, training them to direct their 
efforts to a common end and to sacrifice for that purpose 
a certain measure of the exercise of their individual 
wills. So strong is the aggregative tendency, that each 
community naturally goes on by a sort of law of na- 
ture to expand and draw in others, whether persons or 
groups, who have not previously belonged to it : nor is 
physical force the prime agent, for the great majority of 
mankind prefer some kind of political society, even one 
in whose management they have little or no share, to 
mere isolation. As this process of expansion and aggre- 
gation continues, the different political groups which it 
has called into being come necessarily in contact with 
one another. The weaker ones are overcome or peace- 
fully absorbed by the stronger ones, and thus the number 
of groups is continually lessened. Where two communi- 
ties of nearly equal strength encounter each other, each 
may for a time succeed in resisting the attraction of the 

1 This Essay was composed in the early part of 1885. It has been revised 
throughout, but the substance remains the same. 



CENTRIPETAL AND CENTRIFUGAL FORCES 217 

other. But in this changeful world it almost always 
happens that sooner or later one becomes so much 
stronger that the other yields to it : and thus in course of 
time the number of detached communities, i.e. of groups 
each with its own centre of attraction, becomes very 
small, because the weak have been swallowed up by the 
strong. This is the general, though, as we shall see, not 
the universal course of events. There is also another 
force at work, which has at some moments in history 
developed great strength. 

I. How the Tendencies to Aggregation and to Dis- 
junction RESPECTIVELY AFFECT CONSTITUTIONS. 

Of the many analogies that have been remarked be- 
tween Law in the Physical and Law in the Moral World, 
none is more familiar than that derived from the New- 
tonian astronomy, which shows us two forces always 
operative in our solar system. One force draws the 
planets towards the sun as the centre of the system, the 
other disposes them to fly off from it into space. So in 
politics, we may call the tendency which draws men or 
groups of men together into one organized community 
and keeps them there a Centripetal force, and that which 
makes men, or groups, break away and disperse, a Cen- 
trifugal. A political Constitution or frame of govern- 
ment, as the complex totality of laws embodying the 
principles and rules whereby the community is organized, 
governed, and held together, is exposed to the action of 
both these forces. The centripetal force strengthens it, 
by inducing men (or groups of men) to maintain, and 
even to tighten, the bonds by which the members of the 
community are gathered into one organized body. The 
centrifugal assails it, by dragging men (or groups) apart, 
so that the bonds of connexion are strained, and possibly 
at last loosened or broken. That no community can be 
exempt from the former force is obvious. But neither 
can any wholly escape the latter. For every community 



218 CENTRIPETAL AND CENTRIFUGAL FORCES 

has been built out of smaller groups, and the members 
of such groups have seldom quite lost the attraction 
which each had to its own particular centre, such attrac- 
tion being of course dissociative as regards the other 
groups and their members 1 . Moreover in no large 
community can there ever be a complete identity of views 
and wishes, of interests and feelings, between all the mem- 
bers. Many must have something to complain of, some- 
thing which sets them against the rest and makes them 
desire to be, for some purposes, differently treated, or 
(in extreme cases) to be entirely separated. The exist- 
ence of such a grievance constitutes a centre round which 
a group is formed, and this group is in so far an element 
of disjunction. Accordingly the history of every com- 
munity and every constitution may be regarded as a 
struggle between the action of these two forces, that 
which draws together and that which pushes apart, that 
which unites and that which dissevers. 

This subject, it may be thought, belongs either to 
History, in so far as history attempts to draw general 
conclusions from the facts she records, or to that branch 
of political science which may be called Political Dyna- 
mics, and is one with which the constitutional lawyer is 
not directly concerned. The constitutional lawyer, how- 
ever, must always, if he is to comprehend his subject and 
treat it fruitfully, be a historian as well as a lawyer. His 
legal institutions and formulae do not belong to a sphere 
of abstract theory but to a concrete world of fact. Their 
soundness is not merely a logical but also a practical 
soundness, that is to say, institutions and rules must 
represent and be suited to the particular phenomena they 
have to deal with in a particular country. It is through 
history that these phenomena are known. History ex- 
plains how they have come to be what they are. History 
shows whether they are the result of tendencies still in- 

1 In the pages that follow the word Group is used to denote the section of per- 
sons within a larger community who may be held together by some tie, whether 
of interest or sentiment or race or local habitation, which makes them a sort of 
minor community inside the larger one. 



CENTRIPETAL AND CENTRIFUGAL FORCES 219 

creasing or of tendencies already beginning to decline. 
History explains them by parallel phenomena in other 
times and places. Thus the lawyer who has to consider 
and advise on any constitutional problem, and still more 
the lawyer who has to contrive a constitutional scheme 
for grappling with a political difficulty, must study the 
matter as a historian, otherwise he will himself err and 
mislead those whom he advises. Great lawyers often 
have so erred, and with lamentable results. A lawyer 
who shall deal with a constitutional problem as he would 
deal with a technical point in the law of real property will 
be as much astray as an advocate who should prosecute 
or defend a political prisoner with a sole regard to the law 
of treason or sedition which he may find in his books, 
heedless of the temper and opinion of those from among 
whom the jury will be drawn. 

An obvious illustration may be found in the fact that 
when any particular community is studied from the 
constitutional point of view, and the inquiry is raised 
whether it ought to have a Flexible or a Rigid Constitu- 
tion, the question of the comparative actual strength of 
these two forces becomes a vital one. Where the centri- 
petal force is palpably the stronger, either sort of con- 
stitution will do to hold the community together : and 
the choice between the two sorts may be made on other 
grounds. But where the centrifugal force is potent, and 
especially where there are reasons to apprehend its 
further development, the establishment of a Rigid Con- 
stitution may become desirable, and yet may be a matter 
of much delicacy and difficulty. If the constitution be 
framed in the interests of a centralizing policy, there is 
a danger that it may assume and require for its mainte- 
nance a greater strength in the centripetal forces than 
really exists, and that for the want of such strength the 
constitution may be exposed to a strain it cannot resist. 
Amid the constant change of phenomena, a Rigid Con- 
stitution necessarily represents the past, not the present ; 
and if the tendencies actually operative are towards the 



220 CENTRIPETAL AND CENTRIFUGAL FORCES 

dissociation of the component groups of the community, 
a frame of government which fails to provide scope for 
these tendencies will soon become out of date and unfit 
for its work. Where, on the other hand, the existence of 
distinct groups, each desiring some control of its own 
affairs, is fully perceived and duly admitted as a factor in 
the condition of the community, and where it is desired 
to give legal recognition to the fact, and to protect the 
other local groups or sub-communities from being over- 
ridden by the largest among the groups, or by the com- 
munity as a whole, the creation of a Rigid Constitution 
offers a valuable means of securing these objects. For 
such a constitution may be so drawn as to place the local 
groups under the protection of a fixed body of law, mak- 
ing their privileges an integral part of the frame of gov- 
ernment, so that the whole Constitution must stand or 
fall with the maintenance of the rights enjoyed by the 
groups 1 . The familiar instance of such a form of Rigid 
Constitution is a Federal Constitution. It is specially 
adapted to the case of a country where the centrifugal 
forces are so strong that it is clear that the groups will 
not consent to be wholly merged and lost in one com- 
munity, as under a Flexible Constitution might befall 
them, yet where they are sufficiently sensible of the ad- 
vantages of combination to be willing to enter into a 
qualified and restricted union. And in these cases it has 
sometimes proved to be an efficient engine for further 
centralization. That is to say, the best way of strength- 
ening in the long run the centripetal tendencies has been 
to give so much recognition and play to the centrifugal 
as may disarm them, and may allow the causes which 
make for unity to operate quietly without exciting 
antagonism. 

It appears accordingly that the historian who studies 
constitutions, and still more the draftsman who frames 
them, must have his eye constantly fixed on these two 

1 Subject of course to any provisions for amending the Constitution which may 
have been inserted. See Essay III, p. 176 sqq. 



CENTRIPETAL AND CENTRIFUGAL FORCES 221 

forces. They are the matter to which the legislator has 
to give form. They create the state of things which a 
Constitution has to deal with, so laying down principles 
and framing rules as on the one hand to recognize the 
forces, and on the other hand to provide safeguards 
against their too violent action. Their action will pre- 
serve or destroy the Constitution, — preserve it, if it has 
given them due recognition and scope, destroy it, if its 
provisions turn out to be opposed to the sweep of irre- 
sistible currents. The forces that move society are to 
the constructive jurist or legislator what the forces of 
nature are (in the famous Baconian phrase) to man. He 
is their servant and interpreter. They can be overcome 
only by obeying them. If he defies or misunderstands 
them, they overthrow his work. If he knows how to 
use them, they preserve it. But his difficulty is greater 
than that of the physicist, because these social forces are 
more complex than those of inanimate nature, and vary 
in their working from generation to generation. 

II. Tendencies which may operate either as 
Centripetal or as Centrifugal Forces. 

Now let us see what are the chief among the tenden- 
cies which in political society are capable of playing the 
part either of centripetal or of centrifugal forces. 

So far as individual men are concerned, all the ten- 
dencies that work on them may be said to be associative 
tendencies, that is to say, every thing tends to knit indi- 
vidual men together into a band or group, and to make 
them act together. The repulsion of man from man is so 
rare that we may ignore it. Even the keenest individual- 
ist desires to convert other men to his individualism, and 
forms a league for the purpose with others who are like- 
minded. 

As regards political societies, the subject wherewith 
we are here concerned, the tendencies I am going to 
enumerate may be either associative or dissociative. 



222 CENTRIPETAL AND CENTRIFUGAL FORCES 

Whether in the ease of any given State they aet as 
agglutinative and consolidating forces or as splitting and 
rending forces depends upon whether they are at the 
moment giving their support to, or are enlisted in the 
service of, the State as a whole, or are strengthening the 
group or groups inside the State which are seeking to 
assert either their rights within the State or their inde- 
pendence of it. Even obedience, the readiness to submit 
and follow, which might seem primarily a centripetal 
force, may be centrifugal as against the State if it leads 
the partisans of a particular recalcitrant group to sur- 
render their wills to the leaders of that group. Even 
the love of independence, the desire to let each man's 
individuality have full scope, may act as a centripetal 
force if it disposes men to revolt against the tyranny of 
a faction and maintain the rights and interests of the 
whole people against the attempts of that faction to have 
its own way. There are always two centres of attrac- 
tion and two groupings to be considered, the larger, 
which we call the State, and the smaller, which may be 
cither a subordinate community, such as a province, 
district or dependency, or only a party or faction. And 
the centripetal force which draws men to the smaller 
centre is a centrifugal force as regards the larger. 

These two tendencies, which I have referred to as 
Obedience and Individualism, are so familiar, and the 
former is a disposition of human nature so generally 
pervasive, as to need no further discussion. The other 
tendencies which may operate either centrifugallv or 
centripetally may be classed under the two heads of In- 
terest and Sympathy. Under the head of Interest there 
fall all those influences which belong to the sphere of 
Property, including of course Industry and Commerce 
as means of acquiring property. These influences usu- 
ally make for consolidation and assimilation. It is a gain 
to the trader or the producer that the area of consumers 
which he supplies without the hindrance of an interposed 
customs tariff should be as wide as possible. It is a gain 



CENTRIPETAL AND CENTRIFUGAL FORCES 223 

that communications by sea and land should be safe, 
easy, swift, and cheap, and these objects are better se- 
cured in a large country under a strong government. 
It is a gain that coinage, weights, and measures should 
be uniform over the largest possible area and that the 
standard of the currency should be upheld. It is a gain 
that the same laws and the same system of courts should 
prevail in every part of a State — and the larger the State 
the better, so far as these matters are concerned — and 
that the law should be steadily enforced and complete 
public order secured. All these things make not only for 
the growth of industry and the spread of trade, but also 
for the value of all kinds of property. And all these in- 
fluences, derived from the consideration of such gains, 
which play upon the citizen's mind, are usually aggre- 
gative influences, disposing him to desire the extension 
of the State and the strength of its central authority. 
Considerations of Interest, therefore, usually operate as 
a centripetal force. It was through commercial interests 
that the States of Germany were, after the fall of the old 
Romano-Germanic Empire, drawn into that Zollverein 
which became a stage towards, and ultimately the basis 
of, the present German Empire. It was the increase of 
trade, after the union of Scotland and England, that by 
degrees reconciled the Scotch to a measure which was 
at first most unpopular among them as threatening to 
extinguish their national existence. It is the absence 
of any strong commercial motives for political union 
that has hampered the efforts of those who have 
striven, so far successfully, to keep Norway and Sweden 
united. 

In exceptional cases, however, the influences of Inter- 
est may be centrifugal. A particular group of traders or 
landowners, for instance, living in a particular district, 
may think they will gain more by having the power to 
enact special laws for the conduct of their own affairs or 
for the exclusion of competing persons than they will by 
entering or by remaining under the uniform system of a 



224 CENTRIPETAL AND CENTRIFUGAL FORCES 

large State 1 . Trade considerations counted for some- 
thing in making the planters of the Slave States of 
America desire to sever themselves from a government 
in which the protectionist party was generally dominant. 
It is partly on economic grounds that the various 
provinces of the Cis-Leithanian part of the Austro- 
Hungarian Monarchy have been allowed, and desire 
to maintain, each its autonomy. It was largely a diver- 
gence of economic views and interests that so long 
deterred the free trade colony of New South Wales 
from linking its fortunes in a federation with the pro- 
tectionist colonies ; nor were there wanting industrial 
grounds which made the adhesion of Queensland long 
doubtful. 

To the head of Sympathy we must refer all the influ- 
ences which flow not from calculation and the desire of 
gain, but from emotion or sentiment. The sense of 
community, whether of belief, or of intellectual convic- 
tion, or of taste, or of feeling (be it affection or aversion 
towards given persons or things), engenders sympathy, 
and draws men together. To the same class belong the 
recognition of a common ancestry, the use of a common 
speech, the enjoyment of a common literature. The im- 
portance of these factors has often been exaggerated. 
Some of the keenest Irish revolutionaries have been 
English by blood and Protestants by faith. The Border- 
ers of Northumberland and those of Berwickshire did 
not hate one another less because they were of the same 
stock and spoke the same tongue. The Celts of Inver- 
ness-shire and the Teutons of Lothian are now equally 
enthusiastic Scotchmen, though they disliked and de- 
spised one another almost down to the days of Walter 

1 The case of Ireland shows the same forces of industrial or commercial in- 
terest, real or supposed, operating partly as centripetal, partly as centrifugal. 
The Nationalist party conceive that economic benefits would result from a local 
legislature, which could aid local industries. The mercantile class, especially in 
the north-eastern part of the island, fear commercial loss from anything which 
could hamper their trade intercourse with Scotland and England, or which might 
be deemed prejudicial to commercial credit. With the soundness of either view I 
am not concerned ; it is sufficient to note the facts. 



CENTRIPETAL AND CENTRIFUGAL FORCES 225 

Scott l . Mere identity of origin does not count for much, 
as witness the ardent Hungarian patriotism of most of 
the Germans and Jews settled in Hungary, with perhaps 
no drop of Magyar blood in their veins. Community of 
language does not any more than a common ancestry 
necessarily make for love, and indeed may increase 
hatred, because in an age of newspapers each of two dis- 
putant parties can read the injurious things said of it by 
the other. Civil wars are, like family quarrels, prover- 
bially embittered. Tocqueville wrote, in 1833, that he 
could imagine no more venomous hatred than the Amer- 
icans then felt for England. So it may be said that 
though the want of these elements of community is usu- 
ally an obstacle to unity, their presence is no guarantee 
for its existence. Somewhat greater value belongs to 
identity of traditions and historical recollections, and to 
the possession of the materials for a common pride in 
past achievements. Most men find a personal satisfac- 
tion and take a personal pride in recalling the feats and 
struggles of the nation, or the tribe, or the party, or the 
sect, to which they belong, so the recollection of exploits 
or sufferings becomes an effective rallying point for a 
group. We all know how powerful a force such memo- 
ries have been at various times in stimulating national 
feeling in Italy, in Germany, in Hungary, in Scotland, 
in Portugal, in Ireland. 

Still less necessary is it to dwell upon the influence of 
Religion, which, as it touches the deepest chords of 
man's nature, is capable of educing the maximum of 
harmony or discord. No force has been more efficient 
in knitting factions and States together, or in breaking 
them up and setting the parts of a State in fierce an- 
tagonism to one another. Religion held together the 
Eastern Empire, originally a congeries of diverse races, 
in the midst of dangers threatening it from every side for 

1 A curious survival of the dislike of the Lowlander to the Highlander may be 
found in Carlyle's comments upon the Highland wife of his friend Thomas Camp- 
bell the poet. 
15 



226 CENTRIPETAL AND CENTRIFUGAL FORCES 

eight hundred years. Religion now holds together the 
Turkish Empire in spite of the hopeless incompetence 
of its government. Religion split up the Romano-Ger- 
manic Empire after the time of Charles the Fifth. The 
instances of the Jews and the Armenians are even more 
familiar. 

There remains a large and rather miscellaneous cate- 
gory of sources of sympathy which we may call by the 
general name of Elements of Compatibility. Traits of 
character, ideas, social customs, similarity of intellectual 
culture, of tastes, and even of the trivial usages of daily 
life, all contribute to link men together, and to assimilate 
them further to one another, as the absence of these 
things tends to differentiation and dissimilation, because 
it supplies points in which the members of one group, 
racial or local or social, feel themselves out of touch with 
the members of another, and possibly inclined to show 
contempt, or to think themselves contemned, on the 
ground of the divergence. The natural repulsion which 
the Germans usually feel for the Slavs, and the Slavs 
for the Germans, seems to have its root in a difference of 
character and temperament which makes it hard for 
either race to do full justice to the other. That repulsion 
is powerfully operative to-day in the Austrian Empire. 
In the ancient world the obstinate and passionate Egyp- 
tians seem to have displayed, and provoked, a similar 
antagonism in their contact with other races, and par- 
ticularly with the arrogant Persians. 

These influences of Sympathy, like those of Interest, 
may figure either as centripetal or centrifugal forces, 
according as the centre round which they group and 
towards which they draw men is the main centre of that 
larger circle represented by the State or the centre of 
the smaller circle represented by the tribe, the district, 
the province, the faith, the sect, the faction. The same 
feeling may play the one part or the other according to 
the accident of individual view, or taste, or environment. 
Thus in a University consisting of a number of autono- 



CENTRIPETAL AND CENTRIFUGAL FORCES 227 

mous colleges, one man may be a centralizer, and seek 
to bring the colleges into subordination, pecuniary and 
administrative, to the University, while another man 
may desire to maintain their independence, and yet both 
may set a high value on corporate spirit, and be filled 
with it themselves. In one man this spirit clings to 
the college, in another it glorifies the University. The 
patriotism which makes a Magyar desire that Hungary 
should absorb Croatia, and that which makes a Croat 
desire to sever his country from Hungary, are essen- 
tially the same sentiment, though, as regards the mon- 
archy of the Hungarian Crown, the sentiment operates 
with the Magyar as an attractive, with the Croat as a 
repulsive force. This statement is generally true of that 
complex feeling, based upon affinities of race, of speech, 
of literature, of historic memories, of ideas, which we 
call the Sentiment of Nationality, a sentiment compara- 
tively weak in the ancient world and in the Middle Ages, 
and which did not really become a factor of the first 
moment in politics till the religious passions of the six- 
teenth and seventeenth centuries had almost wholly sub- 
sided, and the gospel of political freedom preached in the 
American and French Revolutions had begun to fire 
men's minds. As regards the historical States of Europe, 
it is a sentiment which is both aggregative and segre- 
gative. It has contributed to create the German Em- 
pire : yet it is also a sentiment which makes Bavaria 
unwilling to merge in that Empire her individual exist- 
ence. In Bavaria, and still more in the case of Scotland, 
which had a long and brilliant national history, the senti- 
ment of local has been found compatible with a senti- 
ment of imperial patriotism. 

It is a remarkable feature of recent times that the 
tendency of a common interest to draw groups together 
and make them prize the unity of the State is often 
accompanied by the parallel development of an opposite 
tendency, based on sentiment, to intensify the life of the 
smaller group and in so far to draw it apart, and thereby 



228 CENTRIPETAL AND CENTRIFUGAL FORCES 

weaken the unity of the State. This arises from the 
fact that the march of civilization is material on the one 
hand, intellectual and moral on the other. So far as it is 
material, it generally makes for unity. On its intellec- 
tual and social or moral side it works in two ways. It 
tends to break down local prejudices and to create a 
uniform type of habits and character over a wide area. 
But it also heightens the influence of historical memo- 
ries. It is apt to rekindle resentment at old injuries. 
Filling men's minds with the notion of social and politi- 
cal equality, it disposes them to feel more keenly any 
social or political inferiority to which they may be sub- 
jected. Raising the estimate they set upon themselves 
as individuals and as a race, it makes them more bold in 
organizing themselves and claiming what they deem 
their rights. And so one notes the singular phenomenon 
that men are stirred to disaffection, or impelled towards 
separation, by grievances less acute than those which 
their ancestors, sunk in ignorance and despondency, 
bore almost without a murmur. The Roman Catholic 
Irish since 1782 and the Transylvanian Rumans since 
1848 are instances in point. 

All these tendencies, pulling this way and that, are 
among the facts which a given Constitution has to deal 
with, are forces which it must use in order to secure its 
own strength and permanence. Where, in a free country, 
the system of government has grown up naturally, and 
can be readily modified by the normal action of the 
normal sovereign authority, i.e. where the Constitution 
is a Flexible one, the presumption is that the rules and 
usages of the Constitution conform to and represent the 
actual forces, and draw strength therefrom. Yet even 
in countries governed on this system there is a risk that 
the Constitution which the will of a majority has estab- 
lished may leave a minority discontented and unrestful, 
and that such discontent* and unrest may impede the 
working of the machinery and create an element of in- 
stability. In such countries, it may be the part of wis- 



CENTRIPETAL AND CENTRIFUGAL FORCES 229 

dom for the majority to yield something to the minority, 
modifying the Constitution, so far as it can safely be 
modified, in order to remove the obstacles to harmony. 
A centrifugal force which is not strong enough to dis- 
rupt the State, because the centripetal forces are on the 
whole more powerful, may nevertheless be able to cause 
a harmful friction, and may even, if the State be exposed 
to external attacks, become a source of peril. Every- 
body can now see that Rome ought to have admitted 
the Italian allies to the franchise long before the Social 
War, that Catholic Emancipation ought to have been 
enacted by the Irish Parliament in 1796 or by the British 
Parliament immediately after the Union of 1800, that 
Denmark ought not to have waited till 1874 before she 
conceded a qualified autonomy to Iceland, that the same 
country might probably have retained Schleswig-Hol- 
stein if she had yielded long before the war of 1864 some 
of the demands made by the German inhabitants of those 
duchies. And, if we may apply the same principle to 
despotically governed countries, most people will agree 
that Austria ought to have retired from Lom'bardy be- 
fore 1859, and that the Turks gained nothing by cling- 
ing to Bulgaria, and may be gaining nothing now by 
clinging to Macedonia. 

III. How Constitutions may use the Centripetal 
Forces to promote National Unity. 

As we are here dealing with constitutions considered 
in their relation to the forces and tendencies that rule in 
politics (i.e. as a part of political dynamics), we may now 
inquire what it is that Constitutions can accomplish in 
the way of regulating or controlling these forces. 

Every political Constitution has three main objects. 

One is to establish and maintain a frame of govern- 
ment under which the work of the State can be efficiently 
carried on, the aims of such a frame of government 
being on the one hand to associate the people with the 



230 CENTRIPETAL AND CENTRIFUGAL FORCES 

government, and, on the other hand, to preserve public 
order, to avoid hasty decisions and to maintain a tolera- 
ble continuity of policy. 

Another is to provide due security for the rights of 
the individual citizen as respects person, property, and 
opinion, so that he shall have nothing to fear from the 
executive or from the tyranny of an excited majority. 
This object has fallen into the background since these 
rights came to be fully recognized. But in earlier times 
it was the chief purpose of constitutional provisions 
from Magna Charta down to the Bill of Rights and the 
Declaration of Independence. The safeguard for these 
rights which the Constitution of England provided, was 
the thing which, more perhaps than anything else, moved 
the admiration of foreign observers who studied that 
constitution during the eighteenth century. 

The third object is to hold the State together, not 
only to prevent its disruption by the revolt or secession 
of a part of the nation, but to strengthen the cohesive- 
ness of the country by creating good machinery for 
connecting the outlying parts with the centre, and by 
appealing to every motive of interest and sentiment that 
can lead all sections of the inhabitants to desire to re- 
main united under one government. 

In pursuing these objects, a constitution seeks to 
achieve by means of legal provisions that which in ruder 
times it was often necessary to accomplish by physical 
force. No doubt at all times the natural disposition to 
obey (the sources of which I have analysed elsewhere x ) 
was an agent more constant and effective than physical 
force. Nevertheless, the latter was needed, sometimes 
from the side of the government to maintain order and 
compel subjects to bear their share of the public bur- 
dens, sometimes from the side of the subjects to abate 
the abuses into which the possession of power tempts 
rulers. Troops to keep order and quell revolts, and 
men handy with their weapons and ready to rise in insur- 

J See Essay IX, p. 4 6 7 sqq. 



CENTRIPETAL AND CENTRIFUGAL FORCES 231 

rection to dethrone bad monarchs or expel bad minis- 
ters, were a necessary part of the equipment of political 
societies in the ruder ages. 

A good constitution relieves the government from 
the necessity of frequently resorting to military force by 
securing that those who govern shall be persons ap- 
proved by the bulk of the citizens, as well as by providing 
for the purposes of coercion machinery so promptly 
and effectively applicable, that the elements of disturb- 
ance either do not break forth or are quickly suppressed. 
Similarly it relieves the subjects from the need of rising 
in rebellion by providing machinery whereby the com- 
plaints of those who think themselves aggrieved shall 
be fully made known, and shall, if well founded, have 
due effect on the rulers by warning them to remove the 
grievances, or by displacing them if they fail to do so. 

How constitutional machinery should be framed and 
worked for the attainment of the two former objects 
enumerated above, viz. the establishment of a proper 
frame of government and the safeguarding of private 
rights, is a matter which does not fall within the scope 
of our present inquiry. The third object does, so we 
have to ask how a constitution should be framed in order 
to enable it to maintain and strengthen the unity of a* 
State. 

It may do this in two ways. One is by setting various 
centripetal forces to work. The other is by preventing 
all or some of the centrifugal forces from working. 

I have already enumerated the tendencies or influ- 
ences which operate to draw men together and bind 
them into a community, be it greater or smaller, and 
have pointed out that these tendencies may in any given 
case operate in favour either of the State as a whole, in 
which case they preserve it, or in favour of some group 
or section within it, in which case they sap its unity. Let 
us now consider how the constitutional arrangements 
of a State may be so devised as to draw together all its 
members and all the minor groups within it. 



232 CENTRIPETAL AND CENTRIFUGAL FORCES 

The most generally available of these centripetal ten- 
dencies is trade, that interchange of commodities which 
benefits all the producers, by giving them a market, all 
the consumers by giving them the means of getting 
what they want, all the middlemen by supplying them 
with occupation. A Constitution can render no greater 
service to the unity as well as to the material progress 
of a nation than by enabling the freest interchange of 
products to go on within its limits. Nothing did more 
to keep the districts of each of the great European 
countries divided during the Middle Ages than the levy- 
ing of tolls along the rivers and highways by petty po- 
tentates, or than the insecurity of those rivers and high- 
ways, as well as the want of good roads, for thus the 
market for the producers of the cheaper articles was 
narrowed to the small area immediately around them, 
and men were prevented from realizing, or benefiting 
by, the greatness of the country they belonged to. Eng- 
land, with an exceptionally strong and centralized gov- 
ernment, suffered less from these tolls and this insecu- 
rity than did the large States of the Continent, and 
England arrived at unity sooner than they did. And so, 
conversely, nothing has done more to unify the vast ter- 
ritories of the United States than the provisions of the 
Federal Constitution which secure perfect freedom of 
trade within its limits, and empower the National Gov- 
ernment to regulate the means of communication be- 
tween the several States of the Union. So the Customs 
Union of the Germanic States^ formed under the au- 
spices of Prussia in a.d. 1829, did a great work in stimu- 
lating industry, while it showed the people the benefits 
of united action, and prepared the way for the formation 
of the new German Empire. 

Another influence of moment is the establishment of 
a common law and a common system of courts. It is 
not an influence which can be reckoned on so invariably 
or confidently as can the influence of commerce, for any 
hasty attempt to change the law (whether customary or 



CENTRIPETAL AND CENTRIFUGAL FORCES 233 

statutory) to which men are accustomed may provoke 
resistance and retard the growth of unity. Great Britain 
has wisely forborne to impose her own law on the do- 
minions she has acquired by conquest or purchase. 
Roman-Dutch law remains in South Africa, in Ceylon, 
and in Guiana ; Roman-French law in Lower Canada. 
So the French Code was left in force not only in Alsace- 
Lorraine which Germany took in 1871 but also in the 
German country all along the left bank of the Lower 
Rhine, when that region was reunited to Germany in 
1814. So Roman law has remained in Louisiana, which 
was once French. But where one legal system can, 
without exciting resentment, be extended over the whole 
of a country, it becomes a valuable unifying force. As 
respects the substance of law, this happens by the forma- 
tion of certain habits of thought and action, certain ideas 
of justice and utility. As respects the administration of 
law, it happens by giving to the central executive an 
engine for making its power felt, and usually felt for 
good. In the Middle Ages, the jurisdiction of the king's 
courts was found the most effective means both in Eng- 
land, from Henry II onward, and (somewhat later) in 
France, of extending the power of the central govern- 
ment and accustoming the people to rally round the 
Crown as the representative of national unity as well as 
of justice. A somewhat similar process has been in pro- 
gress during the last thirty years among those petty 
principalities which we call the Laos States, and which 
lie to the north of the kingdom of Siam. The princes of 
these States were practically independent, living in a 
country of forests and hills, and recognizing only a vague 
titular suzerainty as vested in the Siamese king at Bang- 
kok. But when foresters from British Burma had come 
among them, desiring to cut down and export the teak 
trees in those forests which make their only wealth, and 
when disputes had arisen between the Laos chiefs and 
these timber traders, the Government of India found it 
needful to make treaties with the king of Siam, under 



234 CENTRIPETAL AND CENTRIFUGAL FORCES 

which a Court presided over by Siamese officials was 
set up in Chiengmai, the principal State. By means of 
this Court the Siamese Government has been able gradu- 
ally to obtain complete control of the forest administra- 
tion and the revenues thence arising, and incidentally to 
strengthen its general authority over these Laos States. 

Similarly, the jurisdiction of the British Privy Council 
as a Supreme Court of Appeal from the Colonies and 
India, and the action of the Supreme Court of the United 
States as the final Court of Appeal for the whole Union 
(in certain classes of cases), have done something to 
make the members of these vast political aggregates 
realize the bond that links them together. In the case 
of the United States, respect for the Federal Courts and 
the keen interest with which their development of the 
law by judicial interpretation is followed by a large and 
powerful profession has been an important factor in 
strengthening the sense of national unity. 

After law, religion, not as less potent, for it is more 
potent, but as more uncertain, because it has been as 
often a dissevering as a unifying influence. There is, 
however, a marked distinction between the earlier and 
the later forms of religion as regards the energy of the 
force they exert. In the earlier stages of civilization, 
when tradition and ritual counted for much, and abstract 
theology had not yet come into being, the worship of the 
gods of the nation or city was a part, a necessary and 
sometimes the most deep-rooted part, of the political 
constitution and the national life. In Egypt the rise or 
fall of a great deity is often the sign of the rise or fall 
of a dynasty. Moab, Edom, and Ammon, are each the 
people of a peculiar God. After the Captivity, when 
the minor Semitic peoples decline or vanish, Israel con- 
tinues to be held together by the name of Jehovah, and 
by the Law He has given. Every Greek and every Ita- 
lian city has its own distinctive public State worship. A 
race sometimes pays special honour to one out of its 
various deities, and the devotion of the Dorians to 



CENTRIPETAL AND CENTRIFUGAL FORCES 235 

Apollo, of the Athenians to the Virgin Goddess, finds a 
mediaeval parallel in that of the Swedes to Odin, of the 
Norwegians to Thor. As the Roman Empire included 
so many races and cities that no one deity or group of 
deities could be worshipped by all, altars were erected 
to the Goddess Rome, and the Guardian Spirit or Genius 
of the reigning Emperor became a common object of 
devotion for the whole mass of his subjects. In modern 
times the strong religions are (except Hinduism) World 
Religions, and therefore not national or local as were 
those of antiquity. But they exert an even greater po- 
litical power. For monotheistic religions, however they 
may develop into elaborate rites and forms of ceremonial 
observance, are primarily philosophical religions, in 
which abstract ideas and beliefs take not only a firm but 
an exclusive grasp of the mind and heart of whosoever 
holds them. Hence they form a closer tie than did the 
worships of the ancient Italo-Hellenic world. Christian- 
ity created a new cohesion when the provinces of the 
Roman Empire were beginning to fall asunder. Islam 
formed a prodigious dominion out of many diverse peo- 
ples. The mutually hostile forms of a World Religion, 
such as the Sunnite and Shiite sects in Islam, act as con- 
solidating or dissevering influences just as the religion 
itself did before schisms had arisen. When a faith 
grounded in peculiar dogmas or observances is held by 
one section of a people and hated by another section, 
it becomes a formidably centrifugal force. When the 
great mass of a people have embraced such a faith, their 
political cohesion is strengthened, and they may attract 
from other communities persons or groups who share 
their beliefs. The same principle applies to beliefs 
which cannot be called religious, but which exert a 
similar power over men's emotions. Even where no 
question of the supernatural is involved, the holding in 
common of certain ideas deemed supremely valuable 
whether for the individual or for society, may operate 
as a centrifugal or centripetal force. 



236 CENTRIPETAL AND CENTRIFUGAL F0RCE8 

A nation with a national religion which all or nearly 
all citizens cherish possesses a bond of unity which grows 
the more powerful the more its traditions become en- 
twined with the national life. It is chiefly the influence of 
the Orthodox Church that has made a people so low in 
the scale of civilization as Russia was three centuries 
ago, to-day so united, so strong through its union, and so 
submissive to its sovereign, for it is not less as Head 
of the Church than as a secular prince that the Czar 
commands the reverence of his subjects 1 . Accordingly, 
whenever a State Church can be set up which embraces 
practically the whole of the people, and when it can be 
associated with the government and the movements of 
public life, the cohesion of the nation and the power of 
the government which controls the church will be in- 
creased. Of the possibly pernicious influence of such 
arrangements on such a church and on religion I do not 
speak ; that is quite another matter. I am only pointing 
out that a Constitution will gain strength, and a nation 
unity, if the ecclesiastical arrangements can be linked to 
those of the secular government, assuming the people 
to be all attached to the same form of faith and worship. 

Similarly, in so far as those who frame a Constitution 
can make it provide a system of education which will 
give the people common ideas and common aspirations, 
in so far as they can persuade the inhabitants to use a 
common language, if the country is one where more than 
one tongue has been spoken, or even to enjoy and meet 
for the enjoyment of common festivities and games, they 
will be availing themselves of influences not to be de- 
spised. The Prussian Government founded the Uni- 
versity of Bonn immediately after the recovery of the 
left bank of the Rhine from France in 1814, and the 
University of Strassburg immediately after the recovery 
of Alsace in 1871, in both cases with the view of bene- 

1 There are of course dissenting sects in Russia, some of them counting many 
adherents, but they have seldom, and in no large measure, affected the political 
unity of the nation. 



CENTRIPETAL AND CENTRIFUGAL FORCES 237 

fiting these territories and of drawing them closer to 
the rest of the country by the afflux of students from 
other parts of it, an aim which was realized. Indeed the 
non-local character of the German Universities, each 
serving the whole of the lands wherein the German 
tongue was spoken, powerfully contributed to intensify 
the sentiment of a common German nationality through- 
out the two centuries (1648 to 1870) during which Ger- 
many had virtually ceased to be a State. The Olympian, 
Pythian, Isthmian, and Nemean games had no con- 
temptible effect in fostering the sentiment of a common 
national unity, as against the barbarians, among the 
Greeks, who had never enjoyed and did not desire politi- 
cal union. The admission of the Macedonian king to 
strive at the Olympian games was a political event of 
high significance, for it enabled his descendants Philip 
and Alexander the Great to claim to belong to the Hel- 
lenic race. 

Some of these various engines for promoting the co- 
hesion of a nation may seem to lie rather in the sphere 
of governmental action than in that of a Constitution. 
Commercial freedom, however, as well as religious com- 
pulsion on the one hand, or religious freedom on the 
other hand, have been provided for by some Rigid Con- 
stitutions. So too has been the use of certain languages. 
Where the Constitution is a Flexible one, the question 
whether the laws regulating such matters are to be 
deemed a part of the Constitution depends entirely on 
the practical importance ascribed to them, since in such 
a Constitution there is no distinction of form between 
fundamental and other provisions. 

IV. How Constitutions may Reduce or Regulate 
the Centrifugal Forces. 

Now let us see what Constitutions may effect in the 
other of the two above specified ways, viz. what they 
may do to meet and grapple with, and if possible disarm, 



238 CENTRIPETAL AND CENTRIFUGAL FORCES 

the tendencies which make for disruption, i.e. the forces 
which, while drawing men together in minor groups 
within the State, are as regards the State itself centri- 
fugal forces. 

What are these tendencies? History tells us that the 
chief among them are race feeling, resentment for past 
injuries, grievances in respect of real or supposed ill- 
treatment in matters of industry, or of trade, or of edu- 
cation, or of language, or of religion, where these griev- 
ances or any of them press on a part only of the popu- 
lation. If they press on the whole population, or on the 
humbler classes as a whole, they are perturbing, but 
not necessarily nor even probably disruptive, i.e. they 
threaten disaffection or a general revolt against the gov- 
ernment, rather than the severance of a particular pro- 
vince or the secession of a particular section of the 
people. It is only with grievances which affect one sec- 
tion or district, and make it desire an independence to 
be obtained by separation, that we have here to deal. 
There must be in every such case either a sentiment of 
dislike on the part of the disaffected section towards the 
rest of the nation, or else a belief that great material ad- 
vantages will be obtained by separation ; and the latter 
of these causes is almost sure to produce the former. 
When two or more of these tendencies combine in any 
given case, so much the stronger does the desire for 
separation become. 

A few illustrations will explain better than a long ab- 
stract statement what I desire to convey. In the ancient 
world the thing which we call National Sentiment was 
seldom a powerful factor, perhaps because the more ad- 
vanced peoples were divided into small city communities, 
while the backward peoples, living under large empires 
like the Persian or that of the Seleucid kings, were 
allowed to retain their own customs and religion, and 
often their native princes, feeling the weight of subjec- 
tion only in having to pay tribute and send a contingent 
in war. The only nations that gave much trouble to the 



CENTRIPETAL AND CENTRIFUGAL FORCES 239 

Achaemenid kings of Persia were the Egyptians, a race 
very peculiar and very conceited, and the Greeks of Asia 
Minor. Under the Roman Empire there were wonder- 
fully few national revolts, probably because the imperial 
government pressed equally upon all, conceded rights of 
citizenship pretty freely, and gave the subjects in ex- 
change for their own national sentiment the higher pride 
of belonging to the majestic World State which had en- 
gulfed them. The chief source of disruptive attempts 
lay in the monotheistic religions. The Jews made more 
than one obviously hopeless rebellion. When Chris- 
tianity became the religion of the Empire, schisms and 
heresies gave trouble. Africa was convulsed by the 
Donatist movement. Egypt was disaffected owing to 
Monophysitism, and no doubt gave herself the more 
readily to the Arab conquerors in respect of this dis- 
affection. The persecuted Montanist sectaries of Phry- 
gia revolted in the sixth century. It was the religious 
persecution of the Fire-worshipping Sassanid kings that 
provoked their Armenian vassals to rebellion 1 . So in 
the fifteenth and sixteenth centuries, the sentiment of 
nationality having not yet reached its full strength, it 
was chiefly by religious divisions that the unity of States 
was threatened. This was what lost the Dutch Nether- 
lands to Spain. This was what split up the Romano- 
Germanic Empire, and made it, after the Thirty Years' 
War, the mere shadow of a State. It contributed to 
keep the Highlanders distinct from the Lowland popu- 
lation of Scotland after the Reformation (though other 
causes also were at work), and it was of course a still 
more potent force in Ireland. In our own time it nearly 
.rent Switzerland in two in the war of the Sonderbund. 
Conversely, any one who notices how little the unity 
of the nation has been threatened in Spain, a country 
where the populations and dialects of the different pro- 
vinces still present striking contrasts, and are accom- 

1 The dualistic Zoroastrianism of Persia seems to have taken many of the cha- 
racteristics of a monotheistic religion. 



240 CENTRIPETAL AND CENTRIFUGAL FORCES 

panied by diversities of character, will be disposed to 
attribute this fact not merely to the absence of natural 
boundaries between the provinces, but also to the re- 
markable religious unity which the nation has always 
preserved. 

In our own time, while religion is a less energetic 
factor, what is called national sentiment has begun to 
threaten loosely compacted States. It compelled the 
transformation in 1868 of the so-called Austrian Empire 
into the present Dual Monarchy. It shakes the Austrian 
half of that monarchy now, so sharp is the antagonism 
between the Czechs of Bohemia and the other Slavic 
populations of Cis-Leithania and the Germans of the 
Western and South-Western Crown Lands. Iceland 
differs from Denmark, with which she has been politi- 
cally united since i38o(or 1397),^ language, in character, 
and in habits, and she has therefore struggled for au- 
tonomy, a large measure of which she obtained in 1874. 
She has had some economic grievances, but sentiment 
has been an even stronger element in her discontent, 
which, however, stopped short of a wish to separate, as 
she feels herself too small to stand alone. A strong 
party in Norway has desired to be divorced from Swe- 
den, to which she was unnaturally yoked in 18 14 by the 
Congress of Vienna, not merely in respect of specific 
complaints regarding the Foreign Office and the consu- 
lar service, but also because her people, though Luther- 
ans like the Swedes, are far more democratic in ideas 
and temper than the latter, and because their high na- 
tional pride makes them unwilling to appear to be in 
any way subordinate to the sister kingdom. The case 
of Poland is a simple one, because she has the memory of 
an independent kingdom destroyed by force and fraud, 
and is different in religion, as well as in speech, from the 
Russians who have annexed her. Had the peasant popu- 
lation of the country shared the patriotism of the upper 
and middle classes, Poland might possibly have suc- 
ceeded in shaking off the yoke. Even now her disaffec- 



CENTRIPETAL AND CENTRIFUGAL FORCES 241 

tion is a source of weakness to Russia. In Ireland 
several currents of discontent have joined to produce the 
passion and prolong the struggle for autonomy, or, in a 
very few of the more ardent minds, for independence. 
There is the diversity of faith, which remains, though that 
of language has almost vanished, a diversity embittered 
by recollections of persecution. There are economic 
grievances, the memory of the destruction of an industry 
in the last century, the more urgent resentment at the 
exactions of landlords, and the peasants' desire to have 
a grip of the soil. There is an incompatibility of cha- 
racter and temperament, due partly to historical condi- 
tions, partly to the old antagonism of Celt and Teuton. 
All these have gone to create a passion among the people 
to be recognized as a nation controlling its own affairs, 
a passion which is the same in essence among those who 
would be content with the possession of a subordinate 
legislature, and those, now fewer than formerly, who 
would like to go further. 

If the sources of the centrifugal force in Ireland are 
easily explicable, and indeed so strong that had this force 
acted upon the whole nation instead of only upon a ma- 
jority which consists mainly of the poorer and weaker 
part of the population, it would have before now pre- 
vailed, those which induced the secession of the South- 
ern States of America are much less evident. Here 
there was no religious factor, nor any revengeful feeling, 
nor any sense of an unjust or oppressive control. The 
South had obtained more than its fair share of power 
and influence in the councils of the Union. But the 
planters had persuaded themselves that property in 
slaves and the whole slave-holding system were threat- 
ened by the growing strength in the Northern and West- 
ern States of an aversion to slavery, with a determina- 
tion to check its extension ; and the irritation of feeling 
which a long struggle had engendered, coupled with a 
growing dissimilarity of habits and ideas, enabled the 
hot-headed oligarchy which controlled the Southern 
16 



242 CENTRIPETAL AND CENTRIFUGAL FORCES 

population to drive it into separation. Possibly these 
causes would not have been strong enough to provoke 
an armed conflict in a unified country. It was the exist- 
ence of State Governments, and the conviction that the 
rights of the States, supposed to be guaranteed by the 
Constitution, furnished a legal basis for secession, that 
spurred the South into its desperate venture. 

What then can the framing, or the manipulation in 
working, of a Constitution do to reduce the power of 
such disruptive tendencies as we have been considering? 

They may of course be resisted by the employment 
of physical force. If a government is sufficiently strong 
and resolute, and is supported by the great majority of 
the nation, it may crush down the discontent of a pro- 
vince or a section. It is however an axiom in free gov- 
ernments, and ought to be an axiom in all governments, 
that physical force should never be used when peaceful 
means will suffice. Coercion usually seems easier, and 
naturally commends itself to the dull, the impatient, and 
the violent, to imperious princes, arrogant ministers, and 
excited majorities. But coercion, besides being a fatal 
expedient if it fails, is often a bad expedient when it ap- 
pears to succeed, for it leaves smouldering discontent 
behind among the vanquished, and it is apt to inflict a 
moral injury, upon the victors, perhaps to warp for the 
future their frame of government and to lower their po- 
litical traditions. Accordingly whenever a Constitution 
can be so drawn and worked as to give the disjunctive 
tendencies just so much recognition as may disarm their 
violence, and bring all sections of the nation and all 
parts of the country to acquiesce in unity under one gov- 
ernment, this course is to be preferred. It may some- 
times fail. Every expedient may fail. But it has gene- 
rally more promise of ultimate success than force has, 
for in a free country force is not a remedy, but a confes- 
sion of past failures and a postponement of dangers 
likely to recur. 

Among the methods which a Constitution may em- 



CENTRIPETAL AND CENTRIFUGAL FORCES 243 

ploy for the purpose indicated, the following find a 
place. 

It may enact certain securities against oppression, 
whether by the executive or by the legislature, giving 
to such securities a specially solemn sanction, and thus 
reassuring the minds of the citizens. This was done by 
Magna Charta, by the Petition of Right, and again by 
the American Federal and State Constitutions, and by 
the French Declaration of the Rights of Man of 1789. 
It is usually done for the protection of all subjects or citi- 
zens alike, but of course the benefit of such a protection 
enures with special value for any section of the popula- 
tion, or any province or group of provinces, likely to be 
specially exposed at any given time to the abuses of 
power, because they are a minority whom the Govern- 
ment, or the majority, may view with disfavour. 

A Constitution may provide means for varying the 
general institutions or laws of the State in such a way 
as to exempt particular parts of the State from any legis- 
lation that might be opposed to their special interests or 
feelings. The retention of Scotland as a distinct king- 
dom after the union of the crowns in 1603, and as a dis- 
tinct part of the United Kingdom after the Treaty and 
Act of Union in 1707, has had most beneficial effects in 
enabling Scotland to be treated separately where it is 
fitting she should be. Her faith, her laws and judicature, 
her system of local government, have remained almost 
intact, to the satisfaction of her people, and with no in- 
jury to the cohesion of the united monarchy 1 . Similarly 
the maintenance of Finland as a separate Grand Duchy, 
with her own tongue, religion, laws and privileges, gua- 
ranteed by the coronation oath of the Czar, has made 
the Finns loyal and contented subjects, and has in no 
wise detracted from the strength of Russia 2 . The cases 

1 Though it must be admitted that the passing of legislation disapproved by 
the majority of Scotch representatives, or the omission to pass legislation which 
they demand, often elicits murmurs. 

2 This wise policy seems unfortunately to be now (1900) on the point of being 
abandoned, with results which every lover of freedom and progress must regret. 



244 CENTRIPETAL AND CENTRIFUGAL FORCES 

of Hungary as towards the Austrian Monarchy, and of 
Croatia as towards Hungary, are also in point. 

It may provide for relegating certain classes of affairs 
to local legislatures, such as those of Croatia or Finland, 
areas which are not only, like Scotland, political divi- 
sions retaining their old laws, but also, unlike Scotland, 
since the Union, communities enjoying local autonomy. 
All Federations are managed on this system; and one 
can see in the case of Canada the advantages it secures, 
for the Roman Catholics of Quebec are able to have 
legislation diverse from that which the Protestant ma- 
jority desires in the other provinces of the Dominion. 

It may assign certain administrative and, within limits, 
certain legislative functions also to the inhabitants of 
minor local areas, such as counties, empowering them 
to regulate their local affairs in their own way. Pro- 
visions of this nature are not usually embodied in Euro- 
pean constitutional instruments. They are, however, to 
be found in the State Constitutions of the American 
States. And they are really, in substance, parts of any 
well-framed Constitution, for nothing contributes more 
to the smooth working of a central government and to 
the satisfaction of the people under it, than the habit of 
leaving to comparatively small local communities the 
settlement of as many questions as possible. The prac- 
tice of local self-government and the love for it are not a 
centrifugal force, but rather tend to ease off any friction 
that may exist by giving harmless scope for independent 
action, and thus producing local contentment. It is only 
where there exist grievances fostering disruptive senti- 
ments that the existence of local bodies with a pretty 
large sphere of activity need excite disquiet. 

It may exclude certain matters altogether from the 
competence of the central government, and thereby keep 
them out of the range of controversy. This principle 
has been wisely followed in the American and Canadian 
and Swiss Federal Constitutions as regards religion in 
its relations to the State. In some federations it has 



CENTRIPETAL AND CENTRIFUGAL FORCES 245 

been similarly found desirable to disable the several 
legislatures from dealing with topics likely to produce 
dissensions among the members of the federation, or 
otherwise to affect the cohesion of the nation. Thus in 
the United States no State legislature can impose any 
duties on goods brought from one State to another, nor 
in any wise interfere with commerce between the States. 

By these means a Constitution may prevent the dis- 
ruptive forces in a country from threatening the stability 
of the central government or the unity of the State. To 
remove part of the material on which they might work 
is to weaken their working, and to divert into safe chan- 
nels the political activity they would evoke. Although a 
Flexible Constitution may accomplish this, if those who 
work it respect certain fundamental principles and treat 
their querulous minorities in a conciliatory spirit, the 
work is best done, and usually has been done, by a Rigid 
Constitution, because this latter provides a guarantee 
to minorities, or to subdivisions of the country, stronger 
than they can have under an omnipotent legislature. In 
fact the existence of the grounds of contention and possi- 
bilities of disruption we have been considering is among 
the chief causes which have called Federal Governments 
and Rigid Constitutions into being. 

One further observation should be made before quit- 
ting this part of the subject. Racial differences and ani- 
mosities, which have played a large part in threatening 
the unity of States, are usually dangerous only when the 
unfriendly races occupy different parts of the country. 
If they live intermixed, in tolerably equal numbers, and 
if in addition they are not of different religions, and 
speak the same tongue, the antagonism will disappear in 
a generation or two by social intercourse and especially 
by intermarriage. When the right of full legal inter- 
marriage had been established, the fusion of the patri- 
cians and the plebs at Rome began. So the Northmen 
in the tenth and eleventh centuries, so the Norman- 
French in the eleventh and twelfth centuries, became 



246 CENTRIPETAL AND CENTRIFUGAL FORCES 

blent with the English. The Magyars and Saxons, 
though generally occupying different parts of the 
country, and to some extent retaining each their own 
speech, have in Transylvania now begun to melt into 
one. It is the fact that they not only speak a different 
tongue but also profess a different faith that keeps the 
Rumans of that province apart from both Saxons and 
Magyars ; and even these differences might in time cease 
to operate did not these Rumans look across the moun- 
tains to a large Ruman State into which they would 
gladly be absorbed. But in one set of cases no fusion 
is possible ; and this set of cases forms the despair of the 
statesman. It presents a problem which no Constitu- 
tion has solved. It is the juxtaposition on the same soil 
of races of different colour. 

This is a recent phenomenon in history. In the an- 
cient world, almost all the barbarous tribes whom Rome 
. subdued and brought into her Empire were sufficiently 
near the Italians and Hellenized Asiatics in physical 
characteristics for intermarriage to go on freely. The 
Carthaginians, who to be sure were not numerous, seem 
to have soon lost their distinctive nationality : and that 
the Jews remained distinct was their own doing, not that 
of the conquerors 1 . Even as towards Egyptians and 
Numidians, who were certainly dark, one hears of little 
repulsion. Besides, both races were intelligent, and the 
former in their way highly civilized. With the African 
slave trade a new and a dolorous chapter in history 
opens. In our own time it is the settlement of Euro- 
peans in countries where the native holds his ground 
against the settler, as the Kafir does in South Africa, and 
the aboriginal Peruvians and Araucanians do in Western 
South America, or it is the influx of coloured immi- 
grants, like that of the Chinese in Western America and 
the Hawaiian Isles, that raises, or threatens to raise in 

1 In two respects the Jews under the early Empire would seem to have been 
above the average level of the civilized subjects of Rome. There was apparently 
very little slavery among them ; and there must have been an exceptionally large 
proportion of persons able to read. 



CENTRIPETAL AND CENTRIFUGAL FORCES 247 

the future, this problem in an acute form. A community 
in which there exist two or more race-elements physi- 
cally contrasted and socially unsusceptible of amalgama- 
tion cannot grow into a really united State. If the 
coloured people are excluded from political rights, there 
is created a source of weakness, possibly of danger. If 
they are admitted, there is admitted a class who cannot 
fully share the political life of the more civilized and 
probably smaller element, who will not be consoled by 
political equality for social disparagement, and who may 
lower the standard of politics by their incompetence or 
by their liability to corruption. If the people of colour 
are dispersed over the country among the Europeans, 
instead of dwelling in masses by themselves, they may 
not act as a centrifugal force, threatening secession, but 
they are a serious hindrance to the working of any form 
of popular government that has been hitherto devised, 
for they divide the population, they complicate political 
issues, they prevent the growth of a genuinely national 
opinion. 

The most noteworthy attempts that Constitutions 
have made to deal with these cases have been made in 
the United States, where the latest amendments to the 
Federal Constitution provide protection for the negroes 
and forbid the States to exclude any person from the 
electoral suffrage in respect of race or colour, and where 
several recent State Constitutions have devised inge- 
nious schemes for disfranchising the vast mass of those 
whom these very amendments have sought to protect. 
So far as political rights are concerned, the problem is 
very far from having been solved in the United States. 
But as regards private civil rights, it has certainly been 
an advantage to the negroes that the Federal Constitu- 
tion guarantees such rights to all citizens : and probably 
in any country where marked differences, with possible 
antagonisms, of race exist, it will be prudent to place the 
private civil rights of every class of persons under the 
equal protection of the laws, and to make the rights 



248 CENTRIPETAL AND CENTRIFUGAL FORCES 

themselves practically identical. It would lead me too 
far from the main subject to describe the ways in which 
similar problems have been dealt with in Algeria, in 
South Africa, and in some of the other colonies of Euro- 
pean nations. Nowhere has any quite satisfactory solu- 
tion been found 1 . But the case of New Zealand deserves 
to be mentioned as one in which the experiment has 
been tried of giving parliamentary representation to the 
natives, who mostly live apart on their own reserved 
lands. So far, the results have been good. The condi- 
tions are favourable, for the Maoris are a brave and in- 
telligent race, and they are now too few in number to 
excite disquiet. 

It was the good fortune of the Roman Empire that 
the vast majority of the races whom it conquered and 
absorbed had no conspicuous physical differences from 
the Italians which prevented intermarriage and fusion. 
Race and birthplace were no great obstacle to a man 
of force. Two or three of the Emperors were of African 
or Arab extraction. Moreover, the peoples of Southern 
Europe seem to have less repulsion of sentiment towards 
the dark-skinned races than the Teutons have. The 
Spanish and Portuguese intermarry not only with the 
native Indians of Central and Southern America, but 
also with the negroes. The French of Canada inter- 
married more freely with the Indians of North America 
than the English have done. 

Summing up, we may say that the aim of a well- 
framed Constitution will presumably be to give the 
maximum of scope to the centripetal and the minimum 
to the centrifugal forces. But this presumption is sub- 
ject to two countervailing considerations. One is that 
the energy of civic life may be better secured by giving 
ample range and sphere of play to local self-govern- 
ment, which will stimulate and train the political interest 
of the members of the State, and relieve the central au- 

1 In Algeria the electoral suffrage is limited ; but in some of the French tropical 
colonies it seems to have been granted irrespective of colour. 



CENTRIPETAL AND CENTRIFUGAL FORCES 249 

thority of some onerous duties. The other is that the 
centrifugal forces may, if too closely pent up, like heated 
water in the heart of the earth, produce at untoward mo- 
ments explosions like those of a volcano. Hence it is 
well to provide, in the Constitution, such means of escape 
for the steam as can be made compatible with the general 
safety of the State. Where a Constitution, and espe- 
cially a Rigid Constitution, has been framed with due 
regard to these considerations, and turns to account the 
methods already discussed, it may itself become a new 
centripetal force, a factor making for the unity and co- 
herence of the community which lives under it. The 
Rigid Constitution has in this respect one advantage 
over the Flexible one, that it is more easily understood 
by the mass of the people, and more capable of coming 
to form a part of their political consciousness. When 
such a Constitution is so contrived and worked as to 
satisfy the bulk of the nation — and it will do so all the 
more if no single section dislikes it — it attracts the affec- 
tion and pride of the people, their pride because it is 
their work, their affection because they enjoy good gov- 
ernment under it. Time, if it does not weaken these 
feelings, strengthens them, because reverence comes 
with age. By providing a convenient channel or medium 
through or in which the centripetal forces may act, the 
Constitution increases the effective strength of those 
forces. It is a reservoir of energy, an accumulator, if 
the comparison be permissible, which has been charged 
by a dynamo, and will go on for some time discharging 
the energy stored up in it. But, like an accumulator its 
energy becomes exhausted if there is not behind it an 
engine generating fresh power, that is to say, if the real 
social and political forces which called it into being have 
become feebler, and those which oppose it have become 
stronger. 



250 CENTRIPETAL AND CENTRIFUGAL FORCES 

V. Illustrations from Modern History of the 
Action of Constitutions. 

The best instance of the capacity of a Constitution to 
reinforce and confirm existing centripetal tendencies is 
supplied by the history of the Rigid Constitution of the 
United States. That instrument was at first received 
with so little favour by the people that its ratification 
was, in many States, obtained with the greatest possible 
difficulty, and the original document secured acceptance 
only on the understanding, which was loyally carried out, 
that it should forthwith receive a number of amend- 
ments. Within fifteen years the party which had advo- 
cated it was overthrown in the country, and ultimately 
broke up and vanished. A generation passed away be- 
fore it began to be generally popular. But after a time 
it secured so widespread a respect that even during the 
fierce and protracted struggle which ushered in the Civil 
War few attacked the Constitution itself, nearly all the 
combatants on one side or the other claiming that its 
provisions were really in their favour. It was not round 
the merits, but round the true construction, of the instru- 
ment that controversy raged. Since the Civil War, and 
the amendments which embodied the results of the Civil 
War, it has been glorified and extolled in all quarters 1 , 
and has unquestionably been a most potent influence in 
consolidating the nation, as well as in extending the 
range and the activity of the central government. 

To what is this success due? Regarded as a Frame 
of Government, i.e. as a piece of mechanism for dis- 
tributing powers between the Executive, the Legislature 
and the Judiciary, the American system has probably 
been praised beyond its deserts. Both the mode of elect- 
ing the President and the working of Congress leave 
much to be desired. But the Constitution has had two 
conspicuous merits. It so judiciously estimated the 

1 Only since 1890 have complaints begun to be made : see Essay III, p. 202, 
ante. 



CENTRIPETAL AND CENTRIFUGAL FORCES 251 

centripetal and centrifugal forces as they actually stood 
at the time when it was framed, frankly recognizing the 
latter and leaving free play for them, and while throwing 
its own weight into the scale of the centripetal, doing 
this only so far as not to provoke a disjunctive reaction, 
that it succeeded in winning respect from the advocates 
both of States' Rights and of National Unity 1 . Thus it 
was able to add more strength to the centripetal ten- 
dency than it could have done had it been originally 
drawn on more distinctly centripetal lines. For — and 
here comes in the second merit — its provisions defining 
the functions of the central Government were expressed 
in such wide and elastic terms as to be susceptible of 
interpretation either in a more restricted or in a more 
liberal way, i.e. so as to allow either a less wide or a 
more wide scope of action for the Central Government. 
During the earlier years, when State sentiment was still 
stronger than National sentiment, the scope remained 
limited, because both the executive and the legislature 
wished to keep it so, and such extensions as there were 
came from judicial construction. But latterly, and espe- 
cially since the prodigious development of internal com- 
munications has stimulated commerce, and since the 
death blow given to States' Rights doctrines by the Civil 
War, the scope has been widened, and has widened quite 
naturally and gradually, with no violence to the words of 
the Constitution, but according to that expansive inter- 
pretation of them which changing conditions and a cor- 
responding change in national sentiment prescribed 2 . 

Nowadays one hears in the United States less about 
the Constitution than about the Flag 3 . But that is 

1 It has been accused of having caused a civil war by omitting to deal with 
the questions out of which the Civil War arose, and by failing to negative the 
right of secession. But to this it may be answered that an attempt to deal with 
those questions or to negative that right might possibly have prevented it from 
having ever been accepted. 

2 This interpretation has sometimes been at variance with the views of the 
older interpreters, but no instance occurs to me in which an impartial jurist could 
have pronounced it inadmissable. 

3 This is still more so to-day (igoo) than it was when this Essay was first com- 
posed. 



252 CENTRIPETAL AND CENTRIFUGAL FORCES 

partly because the Constitution has done its work, and 
made the Flag the popular badge of an Unity which it 
took nearly a century to endear to the nation. 

One might go on to illustrate the efficiency of a Con- 
stitution in consolidating a people composed of dispa- 
rate elements from the parallel case of Switzerland, 
where communities speaking three (it might almost be 
said four) different languages have been brought much 
closer together by the Constitutions of 1848 and 1874 
than they were before, or could have been without some 
such arrangement. Switzerland, however, is a more 
complicated case, because much has turned on the ex- 
ternal pressure towards unity exerted by the fear felt for 
several great bordering Powers. The formidable neigh- 
bours of the Confederation have, so to speak, squeezed 
together into a Swiss people the originally dissimilar 
Alemannic, Celto-Burgundian, Italian, and Romansch 
communities. 

The two instances of the United States and Switzer- 
land 1 , compared with those of unitary countries living 
under Rigid Constitutions, such as France, Belgium, 
Holland and Denmark, suggest the observation that 
the service which Rigid Constitutions may render in 
strengthening the centripetal tendency can best be ren- 
dered where a Federation is to be constructed. For in 
these cases what is needed is an arrangement by which 
the several rights of the component communities which 
are to form the State may be so protected that they 
need not fear to give their allegiance to the State and 
cordially support its Central Government. The exist- 

1 One would like to refer to the cases of the numerous so-called republics, most 
of them federal, of Spanish America. But apart from the difficulty of ascertain- 
ing their constitutional history, little of which has been written, some of these re- 
publics seem to pay so little regard to their constitutions, living generally in a 
state of revolution, whether subsiding, or actually raging, or apprehended, like 
the Atlantic during a series of cyclones following one another along the same 
track from the Bermudas to the Fastnet, that it is hard to draw any conclusions 
of value from them. They are in fact republics only in name : and it is surprising 
that Sir H. Maine in his Popular Government condescended to go to them for 
arguments to discredit democracy. They are military tyrannies, the product of 
peculiar historical, territorial and racial conditions. 



CENTRIPETAL AND CENTRIFUGAL FORCES 253 

ence of such communities is an expression of forces 
actually operative which are centrifugal as towards the 
State as a whole, and therefore need to be studied. By 
giving a carefully limited scope to these forces, and 
thereby diminishing their possibilities of danger, the 
Constitution subserves the cohesion of the States. In a 
truly unitary country this service is not needed. But 
there are cases in which States endeavouring to become 
unitary would have done better had they sought to apply 
the federal principle, placing it under the protection of 
a Rigid Constitution. I have already referred to Den- 
mark. Holland might probably have saved Belgium 
by a concession of some such kind. Whether a similar 
contrivance might not have been profitably employed 
within the British Isles in a.d. 1782, or in a.d. 1800, or 
again later, is a question which will already have pre- 
sented itself to one who has followed the argument thus 
far. 

In dwelling upon the services which Constitutions 
may render, by fostering the centripetal forces, or by 
restraining the violence and softening the action of the 
centrifugal forces, we must not forget that no scheme of 
government can hope permanently to resist the action 
of either tendency if either develops much greater 
strength than it possessed when the Constitution was 
framed. If the centripetal forces grow, the Constitution 
whose provisions have recognized and given scope to 
the centrifugal will be practically, in some of those pro- 
visions, superseded. If the centrifugal grow, it may be 
overthrown. It is where the forces are nearly balanced, 
that the weight of the Constitution may turn the scale, 
and avert conflicts which would have rent the commu- 
nity, or caused a violent subjection of one part of it to 
the other. And in any case the Constitution ought, 
where dissimilative and disruptive forces are feared, to 
be so drawn as to enlist all available motives of interest, 
to shelter the law behind popular sentiment where pos- 
sible, to oppose it to sentiment as little as possible, and 



254 CENTRIPETAL AND CENTRIFUGAL FORCES 

to avoid challenging at the same time the hostility of 
several kinds of sentiment. 



VI. The Probable Action of the Aggregative and 
the Disjunctive Tendencies in the Future. 

Whether in the long run it is the centripetal or the 
centrifugal force that will prevail in politics, or, in other 
words, whether large States or small States are more 
likely to commend themselves to mankind, is a question 
which belongs rather to history than to the doctrines of 
constitutions, and which could be adequately discussed 
only after a long investigation. History shows us first 
one force dominant, then the other, though no doubt 
the centrifugal is usually more powerful in rude times 
and in hilly or mountainous countries, the centripetal 
in countries comparatively advanced in civilization, and 
in level and fertile regions where wealth is more easily 
acquired and stored, and where military operations are 
easier. When the mists of antiquity begin to rise suffi- 
ciently to show us the Mediterranean and south-west 
Asiatic world, we discover both a few great States and a 
multitude of small ones. The former have a low, the 
latter a high and intense political vitality. From the 
time of Menes down to that of Attila the tendency is 
generally towards aggregation : and the history of the 
ancient nations shows us, not only an enormous number 
of petty monarchies and republics swallowed up in the 
Empire of Rome, but that empire itself far more highly 
centralized than any preceding one had been. When the 
Roman dominion began to break up the process was 
reversed, and for seven hundred years or more the cen- 
trifugal forces had it their own way. Europe and West- 
ern Asia were divided up among innumerable petty po- 
tentates, and even the large monarchies, such as the two 
Khalifates, the Romano-Germanic Empire, the king- 
doms of France and Hungary, possessed so feeble a 
royal authority that the real organs of government and 



CENTRIPETAL AND CENTRIFUGAL FORCES 255 

centres of attraction were to be sought rather in the 
vassals than in the nominal sovereign. From the thir- 
teenth century onwards the tide begins to set the other 
way. One great State indeed — the Empire — first decays 
and then disappears under the action of centrifugal 
forces, but all the other chief States expand, absorbing 
their smaller neighbours, and giving themselves a com- 
pact and well-knit organization which makes the central 
power effective through the whole sphere of its action. 
This process culminates in the despotic monarchies of 
the eighteenth century, when the strength of feudal lo- 
calism has been completely broken, though the pic- 
turesque relics of it still cumber the ground, and when 
at the same time the foundations are laid in the West of 
a gigantic State which proceeds to cover the temperate 
area of North America between the two oceans, and, in 
the East, of the dominion of a European nation which 
has absorbed the numerous and populous principalities 
of India. Immediately afterwards the doctrine of popu- 
lar self-government and the doctrine of nationalities 
come upon the scene, threatening a disruption of some 
existing political aggregates. In point of fact, how- 
ever, these new principles have done as much to unite 
as to sever, for though five States — Greece, Rumania, 
Servia, Montenegro and Bulgaria — have been cut off 
from an effete monarchy, and sixteen republics have 
been carved out of the American dominions of Spain 
and Portugal, the doctrine of nationality has substi- 
tuted two new great States, more important than all 
the last-mentioned twenty-one put together, for the 
multitude of kingdoms and principalities which so late 
as 1859 filled Italy and Germany. 

Thus neither Democracy nor the principle of Nation- 
alities has, on the balance of cases, operated to check 
the general movement towards aggregation which 
marks the last six centuries. 

It may, however, be said — and this question should 
be faced before we proceed to inquire whether the aggre- 



256 CENTRIPETAL AND CENTRIFUGAL FORCES 

gative movement is likely to continue — that in all this 
inquiry we have been ignoring two potent factors. One 
is Conquest — that is to say, military power. We have 
been examining the forces of Interest and Sympathy, 
which cover a number of influences social or economic, 
racial or sentimental. But after all it is Conquest, i.e. 
the might of the strongest, which has created most 
States as we find them. Is Conquest one of the centripe- 
tal forces? and if so, is it not the greatest of them? 

The other factor is Family. Succession, which both 
during the Middle Ages and since has done a great deal 
to consolidate principalities and kingdoms. The United 
Kingdom owes much to this agency, Austria and France 
even more. 

Conquest and Dynastic Succession are hardly fit to 
be classed among the centripetal forces, because they are 
not susceptible of scientific treatment like the other in- 
fluences. The disposition of the stronger to subdue and 
annex the weaker neighbour is of course a permanent 
fact in human nature, and therefore in history. But in 
each particular instance the success of one or other com- 
batant depends on what may be called historical acci- 
dents — on the numbers or the discipline of troops, on the 
possession of a commander of military genius, on alli- 
ances with other states, on the internal dissensions of one 
state as compared with the unity of another. Physical 
force belongs to a different sphere from that in which po- 
litical constitutions work. Constitutions may result from 
a conquest or may be maintained for a time by arms ; but 
if they are obliged to rely on and have constant recourse 
to physical force in order to prevent their overthrow, 
they are, considered as Constitutions, failures; because 
the very nature and object of a constitutional Frame of 
Government is so to express and so to adjust to existing 
conditions the wishes and aims of the citizens as to make 
the majority, and if possible the vast majority, of the 
people desire to support it. According to the proverb, 
you can do anything with bayonets except sit down on 



CENTRIPETAL AND CENTRIFUGAL FORCES 257 

them. Physical force is of course needed to punish oc- 
casional infractions of the Constitution or to quell re- 
volts against it. But the system of government which 
ex hypothesi corresponds to the permanently strongest 
among the moral forces, else it has no right to prevail in 
a free country, ought not to be surrounded by cannon. 

Similarly, the devolution of princedoms or kingdoms 
by marriage and inheritance, much as it has done to 
bring States originally independent under one govern- 
ment, lies outside political science in the proper sense 
of the term. Like conquest, it brings about a new state 
of things by an event with which the ordinary political 
and constitutional phenomena of national life have 
nothing to do, coming into these phenomena as an in- 
commensurable and (so to speak) irrational factor 1 . 

So soon as either conquest or a union due to here- 
ditary succession has taken place, the normal centri- 
petal and centrifugal tendencies resume their action. 
Where the territory of one people has been forcibly 
acquired by another, as Lombardy was acquired by 
Austria in 1815, or has been occupied in virtue of a title 
based on succession, as Portugal was claimed by Spain 
in 1580, such centripetal forces as may exist have the ad- 
vantage of physical force behind them. But this advan- 
tage may be unavailing against the stronger forces 
which sentiment sends forth to dissever the connexion. 
Austria lost Lombardy after forty-four years ; Spain lost 
Portugal after sixty. In both cases there was fighting, 
but it was not so much the balance of military strength 
as the settled hostility of the subjected people which in 
both caused the severance. So the acquisition by the 
English kings of Aquitaine and the subsequent conquest 

1 The fact that the custom of a country permits or forbids succession through 
females makes a great difference in the importance of succession. The union of 
Castile with Aragon, like the union of England with Scotland, would not have oc- 
curred under a different rule of succession. So it may make a difference whether 
the throne of the larger country passes to the dynasty of the smaller, or vice versa. 
Had a king of England inherited the throne of Scotland, Scotland might have 
been more hostile to England. Had a king of Portugal inherited the throne of 
Spain, the two countries might have remained united. 
17 



258 CENTRIPETAL AND CENTRIFUGAL FORCES 

of large part of France, the conquest by the Turks of 
Transylvania, the union of Holstein with Denmark, the 
union of Belgium with Holland, the union of Alsace with 
France, all effected without regard to the will of the 
people, were all in time brought to an end. The last- 
mentioned case is a peculiar one. It was not because 
the Alsatians wished to be reunited to Germany, but be- 
cause the Germans wished to be reunited to Alsace that 
a connexion which had lasted nearly two centuries was 
dissolved in 1871. Military motives, decisive as regards 
the annexed part of Lorraine, had something to do with 
the taking of Alsace also ; but if Alsace had not been 
German in language and habits, though not in sentiment, 
the popular voice of Germany would not have insisted on 
recovering it against the will of its inhabitants. 

Speaking broadly, one may say that Conquest and 
Inheritance give an opportunity, better in the latter than 
in the former case, for centripetal forces to work. If 
the peoples on which they operate are backward, with 
no pronounced national feeling, that chance may be a 
good one, and the influences of free commerce, joint 
government (especially if it is good government), to- 
gether with the kind of pride which common service in 
war often produces, may operate to weld two peoples 
together into a united State. Much depends on lan- 
guage, much on geographical position, much on exter- 
nal pressure from powerful neighbours. But if one of 
the peoples (or both) has already developed a strong 
sentiment of nationality, the prospect of fusion is but 
slender. 

The Roman Empire is the capital instance of a vast 
dominion established by conquest. But there it was the 
weakness of the centrifugal forces that secured the co- 
hesion of the Empire. The conquered countries were 
either, like Gaul, Spain and Britain, occupied by tribes 
between whom there existed so weak a bond that no 
general national feeling or combined national action was 
possible, or had been, as in the Eastern Mediterranean 



CENTRIPETAL AND CENTRIFUGAL FORCES 259 

World, ruled by dynasties, most of them sprung from 
military adventurers 1 , so that the sentiment of national 
life had not centred in the monarchy. The centrifugal 
forces of interest — the desire for peace, good govern- 
ment, facilities for commerce, and so forth — obtained 
free play under the imperial administration, and to these 
was added after a time the sense of pride in Roman citi- 
zenship, and in the greatness of a State which included 
all the highest civilization of the world. So too during 
the Middle Ages not a few conquests ended in an assimi- 
lation of the vanquished, which enlarged without weak- 
ening the conquering nation. But during the last three 
centuries the experience of military powers has been 
that the acquisition of masses of subjects who, being al- 
ready civilized, are likely to resist absorption and to re- 
main disaffected, is a doubtful gain and may become a 
danger to the conquering State. The last conspicuous 
instance is Poland, partitioned between three Powers, 
to all of whom her provinces have brought trouble. 
Conquests continue to be made, but they are now mostly 
of barbarous or semi-civilized races, so inferior to the 
conquerors in force and in national spirit that the centri- 
fugal forces are, or at least seem to be, practically 
negligible. 

Is it possible, then, to arrive at any conclusion regard- 
ing the respective strength which these two sets of 
forces are likely to display in the coming centuries? 
Will the tendency to aggregation continue, and does the 
future belong to great States ? Or may new forces ap- 
pear which will reverse the process, as it was reversed, 
though through causes most unlikely to reappear, at the 
fall of the Roman Empire ? 

At first sight the probabilities seem to point to fur- 
ther aggregation. Although none of the five great na- 

1 There were of course also a certain number of city republics, or leagues of re- 
publics, but these were too small to have developed national feeling in the modern 
sense ; and the Roman system left most of them a certain measure of self-govern- 
ment which modified their regret for an independence the delight in which had 
been (in many cases) reduced by domestic disorders. 



260 CENTRIPETAL AND CENTRIFUGAL FORCES 

tional States — Russia, Germany, France, Italy, Britain 
— is in the least likely to be absorbed by any of the 
others, there is reason to think that within the next cen- 
tury some of the smaller states will have disappeared 
from the map of Europe. In one or two other parts of 
the world — as for instance in South and in Central Amer- 
ica — the process by which the great States are expand- 
ing is not yet complete. The influences of swifter and 
cheaper communications by land and sea, of increasing 
commerce, and of the closer intercourse which com- 
merce brings, of the power exerted by the printing press 
in extinguishing the languages which prevail over a 
small area and diffusing those spoken by vast masses of 
men — all these things make for unity within each of the 
great States and add to the attractive power which the 
greater have for the smaller. These influences, more- 
over, all promise to be permanent. 

Against them we must set the fact that Conquest, so 
far as civilized peoples are concerned, seems likely to 
play a smaller role in the future than in the past, because 
it begins to be perceived how tenacious is the sentiment 
of nationality in a vanquished people, and how much the 
maintenance of that sentiment may endanger the victor 
State. As was observed in an earlier page, the progress 
of a community in civilization often tends to intensify 
both its capacity for political discontent and its peculiar 
national sentiment, thus counterworking the influences 
of trade and wealth. A people, or a nationality included 
in a large State, while feeling the centripetal forces of 
material interest, may nevertheless feel the repellent 
instinct of an unquenched attachment to its national tra- 
ditions and cling to the hope of reviving its old national 
life. 

The problem is, however, a far more complex one than 
any comparison of the influences of material interest on 
the one side and national sentiment on the other would 
suggest. Many phenomena may be imagined which 
would affect it as the world moves on. One is a change 



CENTRIPETAL AND CENTRIFUGAL FORCES 261 

in the conditions under which war is waged. Another 
is a removal of some of the causes which induce war, or 
a means, better than now exists, of averting its out- 
break. Another is the growth of what is called Collec- 
tivism and a disposition to apply its principles in small 
rather than in large areas, seeing that there are obvi- 
ously some things which can be better managed in the 
former. We are far from having exhausted the possi- 
bilities of the influence of scientific discovery upon eco- 
nomic life, and through it upon social and political life. 
Both the relations of Nations and States to one another 
and the relations of the groups or communities within 
each State to each other may be affected in ways as yet 
scarcely dreamt of. Neither can we foresee the modes 
in which the scientific way of looking at all questions 
may come ultimately to tinge and modify men's habits of 
thought even in social and political matters. No institu- 
tion was at one time more generally prevalent over the 
world, or seemed more deeply rooted, than Slavery ; and 
slavery,- which has now vanished from civilized com- 
munities, will soon have vanished from all countries. 
There is indeed hardly any institution for which perma- 
nance can be predicted except — and some will not admit 
even this exception — the Family. 

Imagine a world in which all the hitherto unappropri- 
ated territories had been allotted to one or other of the 
few strongest States. Imagine tariffs abolished and the 
principle of equality of trade-facilities among States es- 
tablished. Imagine a system of international arbitra- 
tion created under which the risks of war were so greatly 
reduced that the prospects of war did not occupy men's 
minds and give a military and aggressive tinge to their 
patriotism. The present relations of centripetal and 
centrifugal forces would under such conditions be 
greatly altered, as respects both the wide theatre of the 
world and the internal conditions of each particular 
State. 

Imagine also a great advance in the desire to use gov- 



262 CENTRIPETAL AND CENTRIFUGAL FORCES 

ernmental agencies for the benefit of the citizens, and a 
general conviction that such agencies could best be used 
by comparatively small communities rather than by the 
State as a whole. A new centrifugal force, centrifugal 
at least in respect of each State, would thereby have been 
called into action. No one will venture to foretell any of 
these things. But none of them is impossible ; and it is 
plain that they might produce a set of conditions, and a 
play of forces, unlike the present, and unlike any period 
in the past. We must not therefore assume that the 
large States and the present structure and organization 
of States will be permanent. 

Of the more remote future, History can venture to say 
little more than this — that it will never bring back the 
past. She recognizes that, as Heraclitus says, one can- 
not step twice into the same river. Even when she is 
able to declare that certain forces will assuredly be pre- 
sent, she cannot forecast their relative strength at any 
given moment, nor say what hitherto unobserved forces 
they may not, in their action upon one another, call into 
activity. All she can do for the lawyer, the statesman 
and the legislator, when they have to study and use the 
forces operative in their own time, is to indicate to them 
the nature and the character, the significant elements of 
strength and weakness, that belong to each and every 
force that has been heretofore conspicuous, so as to 
direct and guide them in observing and reflecting on the 
present. This is much less than has sometimes been 
claimed for history. Nevertheless it is a real service, 
for nothing is more difficult than to observe exactly, and 
the ripest fruit of historical study is that detachment of 
mind, created by the habit of scientific thinking, which 
prevents observation from being coloured by prejudice 
or passion. 



V 

PRIMITIVE ICELAND 

Iceland is known to most men as a land of volcanoes, 
geysers and glaciers. But it ought to be no less inter- 
esting to the student of history as the birthplace of a 
brilliant literature in poetry and prose, and as the home 
of a people who have maintained for many centuries a 
high level of intellectual cultivation. It is an almost 
unique instance of a community whose culture and crea- 
tive power flourished independently of any favouring 
material conditions, and indeed under conditions in the 
highest degree unfavourable. Nor ought it to be less 
interesting to the student of politics and laws as having 
produced a Constitution unlike any other whereof re- 
cords remain, and a body of law so elaborate and com- 
plex that it is hard to believe that it existed among men 
whose chief occupation was to kill one another. 

With the exception of Madeira and the Azores, Ice- 
land is the only part of what we call the Old World 1 
which was never occupied by a prehistoric race, and in 
which, therefore, the racial origin of the population is 
historically known to us. 

None of those rude tribes who dwell scattered over 
the north of Asia, Europe and America — Lapps, Samoy- 
edes or Esquimaux — ever set foot in it. Adamnan, 
Abbot of Iona from a. d. 679 to 704, reports in his famous 

1 Though geographically Iceland belongs rather to North America than to 
Europe, geologically its affinities are with the Cape Verde Islands, the Canaries, 
Madeira, and possibly the Azores to the South, with Jan Mayen to the North, as 
it seems to owe its origin to a line of volcanic action stretching from the Cape 
Verde Islands to far beyond the Arctic Circle. 



264 PRIMITIVE ICELAND 

Life of St. Columba 1 , a prophecy of the saint regarding 
a holy man named Kormak, who, in Columba's days 
(a.d. 521-597), made three long voyages from Ireland in 
search of the ' Desert in the Ocean ' (eremum in Oceano), 
a term so happily descriptive of Iceland that one is 
tempted to believe it to be the region referred to. A 
little later the Venerable Bede (a.d. 673-735) speaks of 
contemporaries of his own who, coming from the isle of 
Thule, declared that in it the sun could be seen at mid- 
night for a few days 2 . Still later the Irish monk Dicuil 
(writing about a. d. 825) tells 3 of an isle lying far to the 
North-West where monks known to him had spent the 
summer some thirty years before. And our earliest Ice- 
landic authority, the famous Landndmabok (Book of the 
Land-takings), mentions that when the first Norwegian 
settlers arrived they found a few hermits of Irish race al- 
ready established there, who soon vanished from the 
presence of the stronger heathen, leaving behind books, 
bells and staves (probably croziers). The Norse settlers 
called them Papas (i.e. priests), or Westmen, a term used 
to describe the Scots of Ireland. No doubt, then, the 
earliest discoverers of the isle were these Celtic hermits, 
who had crossed the wide and stormy sea in their light 
coracles of wood and leather, consecrating themselves 
to prayer and fasting in this inclement wilderness. But 
they contributed no element to the population of the 
island, and can hardly be said to have a place in its 
history, which begins with the great Norwegian 
immigration. 

The first Teuton to reach Iceland was a Norse Viking 
named Naddoft, who was driven to the isle by a storm in 

1 Vita S. Columbae, cap. vi. 

2 Comment, on 2 Kings xx. 9. The extreme northernmost point of Iceland just 
touches the Arctic Circle. 

3 In his book De Mensura Orbis Terrae. cap. 7, he identifies the isle with Thule; 
and the reports of the monks point rather to Iceland than to the Faeroe Isles, a 
group which Dicuil mentions elsewhere, and which therefore he cannot mean by 
his Thule. The name Thule has of course been applied by different writers to 
different lands. When Tacitus says that it was seen in the distance by the fleet of 
Agricola, he probably means either Shetland or the Fair Isle between the Shet- 
lands and the Orkneys. 



PRIMITIVE ICELAND 265 

the latter half of the ninth century. He called it Snse- 
land, or Snowland. A second visitor, a Swede named 
Gardar, sailed round it ; a third (Floki, a Norseman) 
landed, and gave it the name it still bears. But though 
the news of the discovery soon spread far and wide 
through the whole Northland, the isle might possibly 
have lain unoccupied but for the events that were passing 
in Norway. King Harald the Fairhaired was then in 
the full career of his conquests. The great battle of 
Hafrsfjord had established his power in Central and 
Southern Norway, and he was traversing the fjords with 
his fleet, compelling the petty chieftains who stood at 
the head of the numerous small independent communi- 
ties that filled the country to acknowledge his supremacy, 
and imposing a tax upon the land-holding freemen. 

The proud spirit of the warriors who for more than a 
century had been ravaging the coasts of all Western 
Europe could not brook subjection, and, being unable 
to offer a united opposition, the boldest and bravest 
among them resolved to find freedom in exile. Some 
sought the Orkneys, Shetlands and Faeroe isles, already 
settled by Northmen. Some joined the Norwegian set- 
tlers in Ireland, and drove the Celtic population out of 
some districts on its eastern coast. Others, again, fol- 
lowed Hrolf Ganger (Gongu Hrolfr) (' the Walker '), 
or Rollo as our books call him, a Viking who, having in- 
curred the wrath of Harald, sailed forth from his home 
on the fjords near Bergen to found in Northern Gaul a 
dynasty of Norsemen whence came the long line of Nor- 
man dukes and English kings, Albanique patr.es atque altae 
moenia Romae. And yet others, hearing the praises of the 
lately-discovered isle far off in the ocean, turned their 
prows to the west and landed on the solitary shores of 
Iceland. They embarked without any concert or com- 
mon plan ; each chieftain, or head of a household, taking 
his own family, and perhaps a group of friends or de- 
pendents ; and they settled in the new land where they 
pleased, sometimes throwing overboard as they neared 



266 PRIMITIVE ICELAND 

the shore the wooden columns, adorned with figures of 
Thor and OSin, of the high-seat in their old Norwegian 
hall, and disembarking at the point to which these were 
driven by the winds and currents. At first each took for 
himself as much land as he desired, but those who came 
later, when the better pastures had been already occu- 
pied, were obliged to buy land or to fight for it ; and a 
curious custom grew up by which the extent of territory 
to which a settler was entitled was fixed. A man could 
claim no more than what he could carry fire round in a 
single day ; a woman, than that round which she could 
lead a two-year-old heifer. So rapid was the immigra- 
tion, many colonists from Norwegian Ireland and the 
Scottish isles, Orkneys, Shetlands and Hebrides (the 
two former groups being then Scandinavian) joining 
those who came direct from Norway, that in sixty years 
the population had risen (so far as our data enable it to 
be estimated) to about 50,000, a number which seems 
not to have been exceeded down to the census of a.d. 
1823. With those who came from Ireland and the Hebri- 
des there came some small infusion of Celtic blood, 
which we note in such names as Njal, Kjartan, and Kor- 
mak, given to men descended from the daughters of 
Irish chieftains. 

Planting themselves in this irregular way, and in a 
country where the good land lay in scattered patches, 
and where deserts, glaciers and morasses, as well as tor- 
rents, passable only with difficulty or even danger, cut 
off one settlement from another, the first settlers did not 
create, and indeed felt little need of, any political or social 
organization. But after a time a sort of polity began to 
shape itself, and the process of its growth is one of the 
most interesting phenomena of mediaeval history. The 
elements out of which it sprang were of course those two 
which the settlers had brought with them from Norway, 
and both of which were part of the common heritage of 
the Teutonic race — the habit Of joint worship at a temple, 
and the habit of holding an assembly of all freemen to 



PRIMITIVE ICELAND 267 

discuss and dispatch matters of common interest, and 
more especially lawsuits 1 . This assembly resembled the 
Old English Folk Mot, and was called the Thing, a name 
which survives in our English word Hustings (Husting 
or House Thing), the platform from whence candidates 
spoke at parliamentary elections, which disappeared in 
a.d. 1872 when written nominations were prescribed by 
the statute which introduced vote by ballot. The ping 2 
(was held at the temple, usually dedicated to Thor, the 
favourite deity of the Norsemen as OSin was of the 
Swedes; since the place of worship was the natural centre 
of the neighbourhood, and the ping was presided over 
by the local magnate or chief, who was usually also the 
owner or guardian of the local temple, there being 
among the Scandinavian peoples no special sacerdotal 
caste.) 

Now when a Norse chief settled himself in Iceland, 
one of his first acts was to erect a temple, often with the 
sacred pillars which he had brought from the ancestral 
temple in the old country. The temple soon became a 
place of resort, not only for his own immediate depen- 
dents, but also for those other settlers of the district who 
might not be rich enough to build and maintain a shrine 
of their own. Of this temple the chieftain and his de- 
scendants were the priests ; and as the meetings of the 
local ping were held in it, he was the natural person to 
preside over such meetings, both because he was usually 
(though not invariably) eminent by his wealth and power, 
and also because he offered the sacrifices and kept the 
sacred temple-ring on which judicial oaths were taken, 
as at Rome men swore at the Ara Maxima of Hercules. 
Thus the priest acquired, if he had not already enjoyed it, 
the position of a sort of local chieftain or magnate, not 
unlike those kings of heroic Greece whom we read of in 

1 Not but what the habit of holding such an assembly has existed among peo- 
ples of very diverse race in many parts of the world. It existed among the Greeks. 
It exists among the Kafirs of South Africa. 

2 I use the Icelandic and Anglo-Saxon letter ]> in this word to distinguish it from 
the common English word. 



268 PRIMITIVE ICELAND 

Homer, or those German tribe-princes whom Tacitus 

describes. Although his title was that of GoSi * (origi- 
nally GuSi) or priest, a word derived from the name of 
the Deity, he lost in becoming the depositary of a cer- 
tain measure of political power most of such religious 
character as his office had possessed. Nor did any sanc- 
tity attach to his person. In that age at least religion 
had come to sit rather lightly upon the Norsemen. 
Either from inner decay, or from the influence of the 
Christian peoples with whom they came in contact be- 
yond the seas, the old faith was beginning to disinte- 
grate. Worship was often cold or careless, and we read 
of men who regarded neither por nor OSin, but trusted 
in their own might and main. 

The GoSi was therefore much more of a secular than 
of an ecclesiastical person, a chieftain rather than a priest 
in our sense of the word 2 . His powers as a chieftain 
were very indefinite, as indeed had been those of the local 
chieftains of Norway. He was only the first among a 
number of free and warlike land-owners, some of them 
equal or superior to him in lineage, with an official dig- 
nity which was little more than formal in the hands of a 
weak man, but might be turned to great account by a 
person of vigour and ability. As he presided in the 
ping, so he was the appropriate person to see to the regu- 
larity of its judicial proceedings, to preserve order, and 
to provide for the carrying out of any measures of com- 
mon concern on which it might determine. When any 
unforeseen danger or difficulty arose, he was looked to to 
advise or take the lead in action ; the members of his 
ping expected aid and protection from him, while he, 
like a thegn among the Teutons of contemporary Eng- 
land, expected support and deference from them. But 
he had no legal powers of coercion. Any one might op- 

The term go(5i does not seem to have been used in Norway, but Ulfila, in his 
translation of the Bible into Gothic (in the fourth century a. d.), renders iepevs by 
gudja. The tS is pronounced like th in ' then.' 

8 It is true that as the Sagas whence we draw our knowledge of the Gooi were 
all written down at a time when heathenism had vanished, it is possible that they 
may not fully represent the original character of the office. 



PRIMITIVE ICELAND 269 

pose him in the ping or out of it. Any ping-man might 
withdraw at pleasure, join himself to some other Go5i, 
and become a member of some other ping 1 . There was, 
it must be noted, no territorial circumscription corre- 
sponding to the ping. Land had nothing to do with the 
position held by the Go5i to the pingmen, and herein, as 
well as in the absence of the relation of commendation 
and homage, we see a capital difference between this sys- 
tem and feudality. Nor was the post of Go'Si a place 
whence much emolument could be drawn. The ping- 
men were indeed required to pay a sort of tax called the 
temple toll (hoftollr), but this did no more than meet the 
expenses to which the Go5i was put in keeping up the 
temple, and feasting those who came to the sacrifices ; 
it gave him no revenue, which he could use to extend his 
authority. Accordingly, the GoSorS was regarded as 
implying power rather than property, and was not (after 
the introduction of Christianity) liable to the payment of 
tithe. A curious feature of the office was its alienability. 
Probably because it had arisen out of the ownership of 
the temple, it was regarded as a piece of private pro- 
perty which could be transferred by way of sale or gift, 
and could be vested in several persons jointly. And 
similarly a number of Go'SorSs might by inheritance or 
purchase become vested in the same person. 

Thus in the years immediately following the immigra- 
tion there sprang up round the coasts of Iceland a great 
number of petty, unconnected and loosely aggregated 
groups of settlers. We must not venture to call them 
states, scarcely even communities, not principalities, 

l The illustrious Konrad Maurer, to whose learned researches and sound judge- 
ment every one who writes about the constitutional antiquities of Iceland must 
feel infinitely indebted, thinks that the name of GoSi was used in Norway before 
the emigration to Iceland, though probably the priest was there a less important 
person than he became in Iceland, where his custody of the temple put him to 
some extent in the position held in the Norwegian motherland by the hereditary 
chieftain, who was in Norway the natural president of the local Thing. 

Those who desire to study the early history of Iceland may be referred to the 
writings of Dr. Maurer, and especially to his Island bis ztim Untergange des Frei- 
staats (Munich, 1874), and his Beitrcige zur Recktsgeschichte des Germanischen 
Nordens (Munich, 1852). 



270 PRIMITIVE ICELAND 

such as those which were beginning to spring up in 
Western Europe, not in a strict sense republics, yet 
nearer to republics than to principalities, organized, so 
far as they were organized at all, chiefly for the purposes 
of justice, and particularly for the exaction of fines for 
homicide, but with no settled plan of government, no 
written laws — if indeed writing was yet in use at all — 
no defined territory, and a comparatively weak cohesion 
among their own members, the Thingmen.^) The really 
effective tie was, in those ages, the tie of kindred; and 
the pingmen of the same Go'Si were not kinsfolk, were 
not a clan or sept, like the Celtic communities of Scotland 
and Ireland. That tie was strong enough to involve a 
whole district in the blood-feud of a single man. For 
when any member of a family was killed, it was the duty 
of his nearest relatives to avenge his death, either by 
obtaining a full compensation in money, for which, if the 
offender refused to pay it, a lawsuit was brought in the 
ping, or else by slaying the murderer or some member 
of his family. Thus a feud, like a Vendetta in Corsica or 
in Eastern Kentucky, might go on from generation to 
generation, each act of revenge drawing others in its 
train, and tending to draw more and more families into 
the feud, because when fights took place, the friends of 
each party often joined, and if some were killed, their 
relatives had a new blood-claim to prosecute. 

Between the different communities that had thus 
sprung up there was no political tie whatever. There 
did not as yet exist any -Icelandic nation, much less any 
common Icelandic State of which all the communities 
felt themselves members. Each was an independent 
body; and if a dispute arose between the members of 
two different pings, there was no means of adjusting 
it except by voluntary submission to the award of some 
other ping or else by open war. Seeing that slayings and 
plunderings and burnings were everyday occurrences in 
this fierce race, where Vikingry (i.e. piracy) was the most 
honoured pursuit, such cases were very frequent, espe- 



PRIMITIVE ICELAND 271 

cially as to take revenge for a kinsman's death was 
deemed a sacred duty. 

Even when the offender belonged to the same pmg 
as the injured, it often happened that the influence of 
his kindred, or the favour of the GoSi of the place, or 
some technical error in bringing the suit for compensa- 
tion, prevented justice from being done. Accordingly 
the need for some remedy, for some further political, or 
rather judicial, organization of the island began to be 
generally felt, for however fond men may be of killing 
one another, the Norsemen were always also fond of 
money, and would often prefer a blood-fine to the satis- 
faction of killing their enemy, could the blood-fine be 
secured. Thus it came to pass that, about fifty years 
after the first colonization, a chief named Ulfljot, venera- 
ble from his age and abilities, came forward to propose 
a scheme. He urged the creation of one general ping 
for the whole country, where all matters of common in- 
terest might be discussed, and all suits which could not 
be dispatched, or had not been fairly dealt with in the 
local pings, might be decided. Travelling round the 
island, he brought over to his views the most influential 
GoSis and other leading men; and at their request, sailed 
to Norway to inquire into the laws prevailing there, and 
to draw up regulations for this new general ping; some- 
what as envoys were, according to the Roman story, 
sent from Rome to the Greek cities to bring back ma- 
terials and suggestions for the legislation of the Decem- 
virs. At the same time Ulfljot's foster-brother, Grim 
Geitskor (' Goat's Shoe '), the fleetest man and nimblest 
rock-climber in Iceland, was commissioned to traverse 
the island in search of a place suitable for the meeting of 
the proposed assembly. After long wanderings, Goat's 
Shoe hit upon a spot to which the name of Ping Vellir *, 
' the plains of the ping,' has ever since belonged, in 

1 Thing Vellir is the nominative plural, Thing Valla — the form in which the 
word has become more familiar to Englishmen, and which remains in Thingwall 
(near Liverpool), Tynwald (in the Isle of Man), and Dingwall (in Rosshire) — is the 
genitive plural. 



272 PRIMITIVE ICELAND 

the south-west of the island, about eight hours' riding 
from where Reykjavik the present capital now stands, 
and within the district of the first temple that had been 
founded by Ingolf, the earliest Norwegian settler. This 
circumstance gave the place a sort of sacredness. There 
was plenty of water and pasture, and the lake which 
washed the plain of meeting abounded (as it does to this 
day) with trout and wild fowl. (It abounds also with 
most pernicious small black flies, whereon the trout 
grow fat, but which make fishing not always a pleasure.) 
Here, accordingly, Ulfljot having in the meantime re- 
turned from Norway with his materials for legislation, 
the first Atying, or General Assembly of all Iceland, met 
in a. d. 930, and here it continued to meet, year after year, 
for a fortnight in the latter half of June, till the year 
1800 1 , one of the oldest national assemblies in the civi- 
lized world, and one of the very few which did not, like 
the English Parliament and the Diet of the Romano- 
Germanic Empire, grow up imperceptibly and, so to 
speak, naturally, from small beginnings, but was formally 
and of set purpose established, by what would have been 
called, had paper existed, a paper constitution, that is to 
say by the deliberate agreement of independent groups 
of men, seeking to attain the common ends of order and 
justice. 

There was thus created, before the middle of the tenth 
century, when Athelstan the Victorious 2 was reigning 
in England and defeating Scots and Northumbrians at 
Brunanburh by the help of the Icelandic warriors Thorolf 
and Egil, sons of Skallagrim 3 , when the Saxon king 
Henry the Fowler was repelling the Magyar hosts and 
laying the foundations of the German Kingdom, and 

1 Since this lecture was delivered the Aiding which since 1843 had led a feeble 
life at Reykjavik as a sort of advisory council, has been re-established as a repre- 
sentative governing- assembly under a new constitution granted to Iceland in 1874. 
It now meets every second year at Reykjavik. 

2 The Saga of Egil calls him ASalsteinn hinn Sigrsseli (lit. 'blessed with vic- 
tory'). It is curious that this title should have been preserved in Iceland and ap- 
parently have been forgotten in England. 

3 See Egils Saga Skallagrimssonar, chap. 54. 



PRIMITIVE ICELAND 273 

when the power of the last Carolingians was beginning 
to pale in Gaul before the rising star of the Capetian line, 
a sort of republic embracing the whole isle of Iceland, a 
republic remarkable not only from its peculiar political 
structure, but also, as will presently appear, from the 
extremely limited range of its governmental activity. 
About thirty years later its constitution was amended in 
some important points, and forty years after that time, 
about the year 1004, further alterations were made, the 
details of which are too much disputed as well as too 
intricate to be explained here. Its general outline, in its 
completed shape, was the following. The total number 
of regular pings, and priest-chieftaincies or GoSorSs, 
was fixed at thirty-nine, nine for each of the four Quar- 
ters into which the island was divided, except the North 
Quarter, which, in order to allay certain local suscepti- 
bilities, was allowed twelve. Each of these thirty-nine 
local pings was presided over by its Gofti. Then, for 
certain purposes, three of these pings were united to 
form a larger ping-district (pingsokn), of which there 
were therefore thirteen in all, viz. four for the North 
Quarter, and three for each of the other Quarters. 
There was also one still larger ping for each Quarter, 
called the FjorSungsJnng. It seems to have grown up 
before the institution of the Aiding, and to have repre- 
sented the first stage in the organization of a larger com- 
munity out of the small local pings. But it tended in 
course of time to lose its importance. 

Ordinary lawsuits and questions of local interest were 
determined in these minor pings, while graver suits, or 
those in which the parties belonged to different pings, 
or where it was sought to reverse the decision of a local 
ping, as well as all proposals for alterations of the 
general law, were brought before the Al]>ing, at its an- 
nual meeting in June. It seems to have been therefore 
partly a court of first instance and partly a court of ap- 
peal. Now the Aiding was open, like other primary 
Teutonic and Hellenic assemblies, to all freemen who 
18- 



274 PRIMITIVE ICELAND 

chose to attend ; but its powers were practically exercised 
by a limited number of persons, viz. the GoSis and cer- 
tain members nominated by them. 

For judicial purposes, the Alping acted through four 
Courts, one for each Quarter. Each Quarter Court 
(fjorSungsdomr) consisted, according to one view, of 
thirty-six members, viz. the GoSis of the Quarter with 
twenty-four nominees, and, according to another view, 
of nine persons nominated by the GoSis of the Quarter. 
There was also a fifth Court (called the fimtardomr), in- 
stituted later than the others (a.d. 1004), on the sugges- 
tion of the famous jurist Njal, son of Thorgeir. This 
Court, which exercised jurisdiction in cases where one 
of the other Courts had failed, was composed in a some- 
what different way, acted under a more stringent oath, 
and gave its decisions by a majority, whereas in other 
Courts unanimity was required. It seems to have been 
intended not only to avert armed strife by providing a 
better method for settling disputes, but also to organize 
the country as a whole and give it something approach- 
ing to a central authority. This result, however, was 
not attained, the social and physical obstacles proving 
insuperable. 

In these judicial committees of the Al]»ing lawsuits 
were brought and argued with an elaborate formality 
and a minute adherence to technical rules far more strict 
than is now practised anywhere in Europe, a fact which 
will appear the more extraordinary when we remember 
that in those days both the law and all the appropriate 
forms of words which the parties were obliged to employ 
were not written, but preserved solely by the memory of 
individual men. 

For legislative purposes the Aljnng acted through an- 
other committee of 144 persons, only one-third (forty- 
eight) of whom, being the thirty-nine GoSis and nine no- 
minees, had the right of voting. The nine nominees 
were persons chosen by the GoSis of the East, South, and 
West Quarters, three by each Quarter, in order to give 



PRIMITIVE ICELAND 275 

each of these Quarters the same strength in the Com- 
mittee as the North Quarter had with its twelve GotJis. 
Each of the forty-eight appointed two assessors who ad- 
vised him, sitting one behind him and the other in front of 
him, so that he could readily seek their counsel, and thus 
the 144 were made up, the forty-eight being described as 
the Middle Bench. This Committee was called the Lo- 
gretta (lit. ' Law Amending '), and by it all changes in the 
law were made, and all matters of common interest dis- 
cussed. It was essentially an aristocratic body, as indeed 
the whole Constitution bore an aristocratic colour, 
though there was no such thing as a formal distinction 
of rank l , much less any titled nobility. After the intro- 
duction of Christianity in a.d. 1000, the two bishops were 
added to the Logretta, while at the head of all, making 
up the number of members to 147, stood an elected offi- 
cer, called the Speaker of the Law. 

This last-named personage, the solitary official of the 
republic, is one of the most curious parts of the system. 
He was called the LogsogumaSr, literally ' Law-say- 
man,' or, as we may render it, Speaker, or Declarer, of 
the Law, and was the depositary and organ of the un- 
written common law of the country. ( It was his duty to 
recite aloud, in the hearing of the greater number of 
those present at the ping, the whole law of Iceland, 
going through it in the three years during which he held 
office ; and to recite once in every year the formulas of 
actions, this being the part of the law which was of most 
practical importance. } Besides this, he presided in the 
Logretta, giving a Casting vote where the votes were 
equal ; and he was bound to answer every one who asked 
him what the provisions of the law actually were, al- 
though not required to advise applicants as to the course 
they ought to follow in a given case. When in any suit 
a question of what was the legal rule arose, reference 
was made to him, and his decision was accepted as final. 

1 Although the penalty for killing a man of high lineage was heavier than that 
for an ordinary freeman ; and one perceives from the Sagas how carefully genea- 
logies were preserved and what great respect was paid to long descent. 



276 PRIMITIVE ICELAND 

For these labours he received a yearly salary of two hun- 
dred ells of VaSmal (the blue woolen cloth which then 
served as currency, and which continued to do so, for 
some purposes, down to our own time), besides one-half 
of the fines imposed at the Alping. He was of course 
selected from the most accomplished lawyers of the time. 
His declarations of the law were conclusive, at least dur- 
ing his three years' term of office, in all causes and over 
all persons. Thus he exercised a kind of quasi-judicial 
or quasi-legislative power, and has been fancifully com- 
pared to the Roman Praetor, also an officer elected for a 
term, also by his edicts the declarer of the law he had 
to administer 1 . But the Law-Speaker was in reality 
neither judge nor magistrate, nor, indeed, a legislator, 
except in so far as the right to enounce and interpret 
borders on legislation. He delivered no judgements, he 
had no power of enforcing a decision or of punishing an 
offender. He did not even open the Alping and take the 
responsibility for keeping order at it, for these functions 
belonged to the GoSi of the district, called, because the 
Aiding met within his jurisdiction, the AllsherjargoSi 
(priest of the whole host). The LogsogumaSr was in 
fact nothing but the living voice of the law, enunciating 
those customary rules which had come down from the 
foretime, rules which all accepted, though they were not 
preserved in any written form, and though they must 
have been practically unknown to the great majority of 
the citizens. 

The office, although more important in Iceland from 
the absence of a king or local prince, was one of which 
we find traces among other Scandinavian peoples, or at 
least among the Norsemen. It appears in Norway, in 
the Orkneys, and in the Hebrides (though there the 
name is Logman, which in Iceland means merely one 
learned in the law). 

Thingvellir, where the Aiding met from the year 930 

1 Viva vox iuris civilis was the description which the Romans used to give of 
their Praetor, as to whom see Essay XIV, p., 691. 



PRIMITIVE ICELAND 277 

down to a time within the memory of living men, is a 
spot not less remarkable physically than memorable for 
the stirring events of which it was the witness. It is a 
slightly undulating plain, some five miles long by three 
wide, washed on the south by a broad island-studded 
lake, and girdled in at its northern end by lofty moun- 
tains, their black volcanic rocks streaked here and there 
with snow-beds. The surface is all of lava, sometimes 
bare and rugged, sometimes covered with thin brush- 
wood, dwarf birches and willows, sometimes smoothing 
itself out into sweeps of emerald pasture, but everywhere 
intersected by profound chasms, formed when the whole 
was a molten mass. East and west it is hemmed in by 
two lines of precipices, whose rugged sides seem to show 
that the plain between them has, at some remote period, 
perhaps when the lava-flood was cooling, sunk suddenly 
down, leaving these walls to be the edges of the plateau 
which stretches away backwards to the east and west. 
Under the western of these two walls, on the margin of 
the lake, just where it receives the stream which has flung 
itself in a sparkling cascade over the precipice, the place 
of meeting was fixed. The chieftains, who came from 
every corner of the island with a following of armed com- 
panions and dependents, because broils were frequent, 
and armed strife might interrupt the progress of a law- 
suit, built their booths — erections of stone and turf roofed 
for the time with cloth or canvas — along the banks of the 
Oxara river, and turned out their horses to pasture by 
the lake. Places were appointed for the holding of the 
several courts, while the Logretta or legislative commit- 
tee sat on a spot which nature seemed to have herself 
designed for the purpose. Two of the extraordinary 
chasms by which the plain is seamed, each some eighty 
feet deep, and filled for the lower fifty feet by bright 
green water, enclose a narrow strip of lava some two 
hundred yards long, cutting it off, except at one point 
where there is a narrow entrance which three men might 
hold, from the surrounding land. The surface is nearly 



2?8 PRIMITIVE ICELAND 

level, covered by short grass now browsed by a few 
sheep ; and there is nothing to tell that in this space, in 
the full sight of the assembled multitude, the heroes of 
ancient Iceland spoke and voted their laws, and gave 
their verdicts ; while from an eminence in the midst of 
the enclosure, still called the Logberg, or Hill of Laws, 
the Law-Speaker recited the law of the nation in the sight 
and hearing of the multitude that stood on the further 
side of the chasms 1 . Not only so: there is all round 
nothing whatever to show that the place has ever been 
different from what it is now. Between the Logberg and 
the lake stand the little wooden church and its humble 
parsonage. No other house is near, nor any sign of 
human life. Only the islet is still pointed out in the river 
where the solemn duels which the laws of Iceland recog- 
nized were fought, and the deep green swirling pool into 
which women condemned for witchcraft were hurled 
from the brink of the precipice. In most of the spots to 
which the traveller is drawn, by memories of constitu- 
tional freedom or of political struggles, his imagination 
is aided by the remains of the buildings where assemblies 
met or monarchs sat enthroned. Here man has left 
nothing to speak of his presence, and it is hard to realize, 
when one looks on this silent and desolate scene, that it 
was once filled by so much strenuous life, and so often 
resounded to the clash of arms. 

For the Alping was not merely an assembly for the 
dispatch of business: it was the great annual gathering 
of the whole nation, a gathering all the more needed in 
a land where there are no towns, and most men live miles 
away from their nearest neighbours. To it chieftains 
rode with their wives and daughters and a band of armed 
retainers from the furthest corners of the country, tak- 
ing, perhaps, as those must have done who came from the 

1 Since this was written, some eminent antiquaries, including my lamented 
friend Dr. GuSbrand Vigfiisson, have argued that the true Logberg is to be 
sought not in this spot which tradition indicates, but on the edge of the great lava 
rift called the Almannagi'a to the west of the river. See The Saga Steads of Ice- 
land, by W. G. Collingwood and Jon Stefansson, 1899, pp. 14-17. 



PRIMITIVE ICELAND 279 

East fjords along the northern edge of the great central 
desert, a fortnight or more on the way. Shipmasters 
from Norway or Ireland brought their wares for sale. 
Artisans plied their trades. We are told that even jug- 
glers' sheds and drinking-booths were set up, and games 
of all kinds carried on. It was a great opportunity not 
only for the renewing of friendships between those who 
lived in distant parts of the country, but for the arranging 
of adoptions and marriages ; and the Sagas mention nu- 
merous instances in which proposals were made or be- 
trothals entered into at a meeting of the Alping, in most 
of which instances the will of the maiden seems to have 
prevailed over that of her parents. It was midsummer, 
when there is in those latitudes no night, but the glare of 
day subsides for a few hours into an exquisitely rich and 
tender twilight, clothing the sky with colours never seen 
in our duller air. And we can fancy how those who fol- 
lowed their fathers to the Alping found compensation 
for all the loneliness and gloom of the long winter in this 
one fortnight of vivid mirth and excitement. 

The meeting of the Alping was not only the centre of 
the political life of the Republic. It was, so to speak, 
the Republic itself, for it was only then that the Republic 
became visible before men's eyes or acted as a collective 
whole. During the rest of the year lawsuits and every- 
thing else of public concern were left to the Quarter 
pings and local pings, and to the local GoSis. The few 
laws or resolutions of general concern which the AlJ'ing 
passed — they were few, because its legislative activity 
was chiefly occupied in regulating its own judicial pro- 
ceedings — were probably meant to be accepted and ob- 
served over the whole island, but the Alping did not at- 
tempt to enforce them, and indeed had no machinery by 
which it could do so. Each GoSi was, in a loose way, a 
sort of executive magistrate over his own pingmen; but 
he did not derive his authority from the Central or Fede- 
ral Alping, and he was not responsible to the Alping for 
its exercise. The Republic, if we may so call it, had no 



280 PRIMITIVE ICELAND 

Executive whatever. Its sole official was the Law- 
Speaker (of whom more anon), but his function was only 
to declare the law, and was exercised only while the 
Atying was sitting. At other times the constituent pings 
and GoSis were virtually quite independent, and might 
and often did carry on war with one another, subject to 
no penalty or liability for so doing, save in so far as an 
action for compensation might be brought against any 
one who had killed another. There was no police, no 
militia, no fleet, no army, nor any means, like those pro- 
vided in the feudal kingdoms of contemporary Europe, 
of raising an army. The isle lay so far away from all 
other countries except Greenland, on which an Icelandic 
colony had been planted, that it happily did not need to 
have a foreign policy. There was neither public revenue 
nor public expenditure, neither exchequer nor budget. 
No taxes were levied by the Republic, as indeed no ex- 
penses were incurred on its behalf. 

LThe Icelandic Republic was in fact a government de- 
veloped only upon its judicial and (to a much smaller ex- 
tent) upon its legislative side, omitting altogether the 
executive and international sides, which were in the 
Greek and Roman world, and have again in the modern 
world, become so important} For a community to exist 
with such an absence of administrative organization was 
obviously possible only in a region like Iceland, severed 
by a wide and stormy sea from the rest of the world, and 
with a very thin and scattered population ; possible too 
only in a simple state of society where man's needs are 
few and every one fends for himself. 

The system whose outlines I have sought to draw is 
full of interest and suggestion, as well to the student of 
legal theory as to the constitutional historian. Some 
modern theorists derive law from the State, and cannot 
think of law as existing without a State. A few among 
them have in England gone so far as to deny that Custo- 
mary Law is law at all, and to define all Law as a Com- 
mand issued by the State power. But here in Iceland we 



PRIMITIVE ICELAND 281 

find Law, and indeed (as will appear presently) a com- 
plex and highly developed legal system, existing with- 
out the institutions which make a State ; for a community 
such as has been described, though for convenience it" 
may perhaps be called a Republic, is clearly not a State 
in the usual sense of the word. (^ Of Iceland, indeed, one 
may say that so far from the State creating the Law, the 
Law created the State — that is to say, such State organi- 
zation as existed came into being for the sake of decid- 
ing lawsuits. There it ended. When the decision had 
been given, the action of the Republic stopped.) To 
carry it out was left to a successful plaintiff; and the only 
effect a decision had, so far as the Courts were concerned, 
was to expose the person resisting it to the penalties of 
outlawry — that is to say, any one might slay him, like 
Cain, without incurring in respect of his death any lia- 
bility on the footing of which his relatives could sue the 
slayer. Law in fact existed without any public responsi- 
bility for enforcing it, the sanction, on which modern 
jurists so often dwell as being vital to the conception of 
law, being found partly in public opinion, partly in the 
greater insecurity which attached to the life of the per- 
son who disregarded a judgement. Yet law was by no 
means ineffective. Doubtless it was often defied, and 
sometimes successfully defied. That happened every- 
where in the earlier Middle Ages, and happens to-day in 
semi-civilized peoples. But the facts that the Alping 
maintained so active a judicial life, that the field of law 
was cultivated so assiduously, and the details of proce- 
dure worked out with so much pains and art, that law- 
suits were contested so keenly and skilfully — all these 
facts seem to prove that law must have in the main had 
its course and prevailed, for it is hard to suppose that all 
this time and pains would have been during two centuries 
or more devoted to a pursuit which had no practical re- 
sult. The contemporary kingdoms and principalities of 
the earlier Middle Ages lived by the vigour of the execu- 
tive. There was in them very little of a State administra- 



282 PRIMITIVE ICELAND 

tion, and the law was in most or all of them older than the 
State — that is to say, it had existed in the form of cus- 
toms recognized and obeyed before efficient means were 
provided for enforcing it. So far they resembled Ice- 
land ; and the same may be said of the city republics of 
Italy and Germany. But Iceland is unique as the ex- 
ample of a community which had a great deal of law and 
no central Executive, a great many Courts and no au- 
thority to carry out their judgements. 

The process by which the law of Iceland grew, though 
less exceptional than was its political constitution, il- 
lustrates very happily the origin of Customary Law and 
the first beginnings of legislation. Law springs out of 
usage. The gathering of the neighbours develops into 
the ping or local assembly of Norway and the Folk Mot 
of early England. It treats of all matters of common 
concern ; and as it is the body before whom complaints of 
wrong are laid, it adopts by degrees regular set forms 
of words for the statements of a grievance, and for the 
replies to those statements. The usages become recog- 
nized customs, prescribing the cases in which redress 
may be claimed and the defences by which the claims 
may be repelled. The forms of words grow more elabo- 
rate and come to be considered so essential that a varia- 
tion from them vitiates the claim. The body of rules 
thus formed becomes so large that only a few men, de- 
voting themselves to the subject, are able to carry the 
whole in their memory. These men, proud of their 
knowledge, elaborate the rules, and particularly the set 
forms of words, still further, and in their enjoyment of 
technicalities attach more and more importance to for- 
mal accuracy. Thus Custom, which was loose and vague 
while held in solution in the minds of the mass, becomes 
crystallized into precision by the labour of the few whose 
special knowledge gives them a sort of pre-eminence, 
and even a measure of power. Then it is found that 
there are diversities of opinion among the experts in the 
law, or instances arise which show that some custom 



PRIMITIVE ICELAND 283 

generally accepted is inconvenient. By this time Cus- 
tom has acquired so much authority that the assembly, 
which has been also, and perhaps primarily, a law court, 
does not venture to transgress it, the men of legal learn- 
ing being of course specially opposed to such a course. 
It therefore becomes necessary formally to change the 
Custom by a resolution of the body which is at once the 
Assembly and the Court. As this body consists of those 
who use, and whose progenitors have created, the cus- 
tom, and as it continues to settle other matters of com- 
mon concern affecting the district, it is the proper and 
only body to make the change. This, then, is legislation 
in its early stage. The law produced, which we may call 
Statute Law, is for many generations extremely small 
in proportion to the mass of law which rests upon Cus- 
tom only. But the Statute Law is important because 
it is explicit, because it is sure to be remembered, be- 
cause it deals with points comparatively large, since it 
would not be worth while to submit small ones to the 
assembly. Nevertheless legislation is among all peoples 
the smallest part of the work of primitive assemblies, 
be they pings or Folk Mots or Agorai or Comitia. And 
the growth of the law of Iceland by custom, preserved 
and elaborated by a succession of law-sages, occasionally 
(though rarely) altered or added to by the vote of the 
Aljang, presents a lively picture of what must have been 
the similar process of the construction of early Roman 
law by the jurists (prudentes) and assembly (comitia). 

Iceland, however, provided a means for the ascertain- 
ment and publicity of her law which Rome lacked. The 
Logsoguma'Sr is an elegant (using the word in its strict 
Roman sense) complement to a system of Customary 
Law. His function was well designed to meet and cure 
the two chief defects in such a system, the uncertainty 
which existed as to what the rules accepted as law were 
and the difficulty which an individual desiring to take or 
defend legal proceedings found in discovering what the 
rule applicable to his case really was. The solemn reci- 



284 PRIMITIVE ICELAND 

tation of the whole law fixed it in the recollections of 
those who busied themselves with such matters, and 
gave everybody an opportunity of knowing what it co- 
vered. The right to interrogate the living depositary of 
the law as to any special point whereanent the querist 
desired to be informed was a great boon to private per- 
sons, who, since they might often have to suffer from 
the extreme technicality of procedure, needed all the 
more to be warned beforehand where the pitfalls lay. 
In these respects the Icelandic system contrasts favour- 
ably with those of early Rome and early England. Till 
the Twelve Tables were enacted the private citizen of 
Rome had no means of ascertaining the law except by 
asking some sage, who need not answer unless he 
pleased, and whose view had no authority beyond that 
which his personal reputation implied. Even after the 
Twelve Tables had reduced much of the ancient Custo- 
mary Law to shape, and made it accessible to the citi- 
zens at large, many of the forms of procedure, and the 
rules as to the days on which legal proceedings could be 
taken, were kept concealed by the patrician men of law 
till divulged (at the end of the fourth century B.C.) by 
Cn. Flavius. In England there was indeed no similar 
effort to keep legal knowledge within the hands of a 
few. But the customs were numerous, and many of 
them were uncertain. There was no way of ascertain- 
ing them except by the judgement of a Court, a tedious 
and expensive process, which after all decided only the 
particular point that arose in the case that occasioned 
the judgement. That means of determining a custom 
to be valid and binding which the Icelanders had already 
secured through their official in the last half of the tenth 
century did not begin to be created by the action of the 
English Courts till the end of the twelfth, and centuries 
were needed to complete the process. 

One of the things that most awakens our surprise in 
the Icelandic Constitution is its extreme complexity. In 
one sense simple and even rude, since it omits so much 



PRIMITIVE ICELAND 285 

we should have expected to find in a constitution, it is 
in another sense intricate, and puzzles us by the artificial 
character of the arrangements made for the composition 
of the various courts and of the legislative body, while 
the multiplicity of pings, and the distribution of powers 
among them, has given rise to many controversies 
among historians, some still unsettled. This pheno- 
menon, however, finds a parallel in some of the constitu- 
tions of the Greek republics, not to speak of the elabo- 
rate systems of such cities as Florence and Venice in the 
fourteenth century. In Iceland the strong sense of inde- 
pendence which distinguished the Norsemen, and the 
jealousy the chiefs had of one another, made it necessary 
to devise means for securing equality and for preventing 
the influence of any group or district from attaining 
predominance. Herein the spirit of the Icelandic Con- 
stitution is singularly unlike that of the Roman. There, 
the intense realization of the unity of the city and the 
need for giving its government the maximum of con- 
centration against neighbouring enemies caused vast 
powers to be entrusted first to the King and then to the 
Consuls or to a dictator. In Iceland, where no such 
need of defence existed, where there was no foreign 
enemy, and men lived scattered in tiny groups round 
the edges of a vast interior desert, no executive powers 
were given to anybody, and elaborate precautions were 
taken to secure the rights of the smaller communities 
which composed the Republic and of the priest-chieftains 
who represented them. 

A like intricate character recurs in the system of legal 
procedure, but the cause is different and not peculiar to 
Iceland. The excessive technicality of Icelandic pro- 
cess, and the stress laid upon exact compliance with its 
rules, belong to that stage of the human mind in which 
form and matter have not yet been separated, and in 
which the respect for usage and tradition outweighs the 
sense of substantial justice. Simplicity in legal matters, 
instead of characterizing the state of nature, is the latest 



286 PRIMITIVE ICELAND 

legal achievement of a civilized age. In accounting for 
the strictness of adherence to the letter, we must allow- 
something for the dread, natural enough in such an age, 
that if deviations from the letter of the law were over- 
looked, if what we should call a power of amendment on 
matters of form were entrusted to the Court, such dis- 
cretion would be abused and confidence in the Courts 
destroyed. But the reason is chiefly to be found, as in 
the parallel case of those older forms of Roman" proce- 
dure which continued terribly technical till the time of 
Cicero, and as in the case of our own older law, to the 
conservative spirit of the lawyers, attached to the forms 
they had received and studied, and taking a professional 
pride in working out their methods, a pride all the greater 
the more technical those methods were, because the 
more intricate the technicalities the higher the impor- 
tance of the few who had mastered them. Substantial 
justice is all the layman cares for. With the lawyer it 
is otherwise. An eminent English judge used to remark 
that of the questions argued before him, counsel showed 
most interest in points of practice, costs came next, 
while the merits of the case were last. The late Baron 
Parke (Lord Wensleydale) was a type of the kind of 
mind which flourished in Iceland in the eleventh cen- 
tury; and it was a type useful in its way, a type which 
ought always to be represented in the legal profession, 
for reverence for tradition and an acute interest in the 
exactitude of form are hardly less necessary than a philo- 
sophic spirit and a zeal for progress. 

How keen was the taste for legal subtleties and in- 
tricacies is shown, not only by the existence of schools 
of law in Iceland — young men gathering round sages 
like Njal or Skapti Thoroddsson, just as the well-born 
youth of Rome frequented the house of Tib. Corun- 
canius or O. Mucius Scaevola — but also by the evident 
enjoyment which the authors of the Sagas show, and 
which their public must evidently have taken, in the steps 
in a lawsuit, or in the telling of some incident which 



PRIMITIVE ICELAND 287 

raises a nice point of procedure. In no other literature 
is fiction or history, by whichever name we describe the 
Sagas, so permeated by legal lore. 

Our knowledge of the substance of early Icelandic 
law is derived partly from references or allusions in the 
Sagas, partly from some ancient law-books, the oldest of 
which belongs to the period of the Republic, and was 
compiled, probably about the middle of the twelfth cen- 
tury, -out of materials some of them much older, and 
reaching back into the eleventh and even the tenth. Sta- 
tutes had been passed during the course of the tenth cen- 
tury, and the Ulfljotslog of a.d. 930 is spoken of as a 
body of law prepared by Ulfljot after his journey to Nor- 
way and accepted by the Aiding, though it was probably 
a redaction of existing Norse customs, and does not 
seem to have been reduced to writing, as indeed it is 
improbable that any laws, were written before the be- 
ginning of the twelfth century. The next effort at what 
has been called a codification of the law was made nearly 
two centuries after tJlfljot (about a.d. 1117), when a 
small commission was appointed which examined the 
customs, rejected some, approved or amended others, 
and created what is described as a sort of systematic col-, 
lection. This is usually known as the HafliSaskra, from 
a prominent Go5i and lawyer HafliSi Marsson, who was 
a member of the commission. This law is stated to have 
been accepted by the Aiding, and was no doubt pre- 
served in writing, as the name Skra (scroll) conveys. 

The later book which used to be described as a Code 
survives in two MSS., differing a good deal from one 
another, and is commonly known as Gragas (' Grey- 
Goose ') 1 . It is, however, really not a Code at all, and 
not even a single law-book, but a mass of matter of 
different dates and origins never reduced to any sort of 

1 The name Grdgds (probably drawn from the binding in which a copy of it 
was preserved) seems to have originally belonged to a MS. of the Frostapingslog, 
the law which prevailed round Throndhjem in Norway, and to have been applied 
by mistake in the seventeenth century to this Icelandic collection of customs, first 
published by the Arnamagnaean foundation in 1829. 



288 PRIMITIVE ICELAND 

unity. There are ordinances of the Alping, decisions 
and declarations delivered by Law-Speakers, ecclesiasti- 
cal regulations, formulas of legal procedure or legal 
transactions, memoranda of customs which seemed to 
those who recorded them to have obtained recognition 
and validity. It is full of instruction as a picture of 
primitive Teutonic institutions and life ; and it throws 
a good deal of light both on the law of early England — 
English and Anglo-Norman — and upon some of the 
most curious features of early Roman law. Sometimes 
the references to the deliverances of a Law-Speaker as 
originating a rule make us think of the Roman Praetor, 
sometimes the concisely phrased records of what was 
settled by the Logretta remind us of our English reports 
of the judgements of the King's Courts in their early 
forms; while in one point the collection as a whole has 
a character which belongs to the earlier law-books as 
well of Rome as of England. Though the statutes of 
the Aiding are the most distinctly authoritative rules it 
contains, much whose authority would seem doubtful 
to a modern is set down in a way which clearly implies 
that it did possess authority. The line between abso- 
lutely binding law and all other law is not sharply drawn ; 
indeed no such line exists. That which is recorded may 
be only a single instance of the observance of an alleged 
custom. It may be only the expression of the individual 
opinion of some learned logmaSr (Lawman = jurist). 
Nevertheless it is a record which has come down from 
the past, and by which therefore the men of the present 
may seek to be guided. 

In the law of Iceland, as it is presented in this ancient 
collection, we have, as in the Constitution of the island 
and the system of the Courts, a striking contrast be- 
tween the rudeness of an extremely archaic society, in 
which private war is constantly going on, piracy is an 
honourable occupation, slavery exists, and there is no 
State administration and very little use of writing, and 
the refined intricacy of a system of law which makes 



PRIMITIVE ICELAND 289 

elaborate provision for the definition of legal rights and 
their investigation and determination by legal process. 
The time of day is fixed by guessing at the height of 
the sun above the horizon. The wife is purchased. A 
father may deliver his child into slavery, no doubt (as in 
early Rome), a qualified slavery, for the payment of his 
debts, and the insolvent debtor may be made a slave. 
But, on the other hand, there are rules, not unlike those 
of our modern Courts of Equity, regulating the guar- 
dianship of the property of a minor, and permitting a 
portion of it to be applied to the support of his indigent 
father, brother or sister 1 . There are careful distinctions 
as to who may sue for the penalty for homicide. If the 
slain man is an Icelander, the action goes first to the son, 
then to the nearest blood relation, then to the local GoSi, 
then to any member of the same Quarter, then to any 
citizen (a sort of actio popularis). If the slain man was 
not an Icelander, but one who used the 'Danish (or 
northern) tongue,' i.e. if he was either a Norseman or 
a Dane or a Swede, then any relative may sue ; if a 
stranger of any other nationality, only a father, son or 
brother may sue. But for the protection of persons 
coming in a ship, the comrade or partner 2 of the de- 
ceased, whom failing, the skipper who has the largest 
share in the ship, is a proper plaintiff. 

It is curious to note that, although homicide and mur- 
der were common, the punishment of death is never 
prescribed, even as in two or three of the Southern 
States of America the death penalty is seldom inflicted, 
while ' shootings at sight ' and lynchings abound. And 
an interesting resemblance to early Roman law may be 
found in the extreme severity of the law of slander and 
libel. The truth of a defamatory statement is no defence. 
To affix a nickname to a man is punishable by banish- 

1 This rule is ascribed to GuSmund Thorgeirsson, who was Law-Speaker from 

II23 to H35 A. D. 

2 Partner is fdlagi (English 'fellow')- Many further rules on this point are 
contained in the passage, Grdgas, chap, xxxvii (vol. ii. pp. 71-73 of the Arna- 
magnaean edition). 

19 



290 PRIMITIVE ICELAXD 

ment. Xo verses are to be made on a man, even in his 
praise, without his leave first obtained; and one who 
teaches or repeats the verses made by another incurs an 
equal penalty, the remedy extending even to verses made 
against the memory of the dead. A love poem addressed 
to a woman is actionable, the action being brought by 
her guardian if she is under twenty years of age 1 . 

Of the ramifications of the system of procedure into 
all sorts of Courts, besides the regular pings, I have no 
space to speak ; but one singular illustration of the faith 
which the Icelanders had in the efficacy of legal remedies 
deserves to be given, because in it these remedies reach 
beyond the present life. It comes from the Eyrbyggja 
Saga, one of the most striking of the old tales. 

A chief named Thorodd, living at Fro a in Brei5ifjor5, 
on the west side of Iceland, had just before Yule-tide 
been wrecked and drowned with his boat-companions in 
the fjord. The boat was washed ashore, but the bodies 
were not recovered. Thereupon his wife ThuriS and 
his eldest son Kjartan bade the neighbours to the fune- 
ral feast ; but on the first night of the feast, as soon as the 
fire was lighted in the hall, Thorodd and his companions 
entered, dripping wet, and took their seats round it. 
The guests welcomed them : it was held that those would 
fare well with Ran (the goddess of the deep sea) who 
attended their own funeral banquet. The ghosts, how- 
ever, refused to acknowledge any greetings, and re- 
mained seated in silence till the fire had burnt out, when 
they rose and left. Xext night they returned at the same 
time and behaved in the same way, and did so, not only 
every night while the feast lasted, but even afterwards. 
The servants at last refused to enter the fire-hall, and no 
cooking could be done, for when a fire was lit in another 
room, Thorodd and his companions went there instead. 
At last Kjartan had a second fire lit in the hall, leaving 
the big one to the ghosts, so the cooking could now be 

1 See Gragas, chaps, civ-cviii, pp. 143-156 of vol. ii. in the Arnamagnaean edi- 
tion. 



PRIMITIVE ICELAND 201 

done. But men died in the house, and ThuriS herself 
fell ill, so Kjartan sought counsel of his uncle Snorri, an 
eminent lawyer and the leading GoM of Western Ice- 
land. By Snorri's advice Kjartan and seven others with 
him went to the hall door and formally summoned Tho- 
rodd and his companions for trespassing within the 
house and causing men's deaths. Then they named a 
Door-Court (Dyradomr) and set forth the suits, follow- 
ing all the regular procedure as at a ping-Court. Ver- 
dicts were delivered, the cases summed up and judge- 
ment given; and when the judgement word was given on 
each ghost, each rose and quitted the hall, and was never 
seen thereafter. 

Ghosts have given much trouble in many countries, 
but it is only the Icelanders who have dealt with them 
by an action of ejectment. 

Although it is a remarkable evidence of the political 
genius of the Norsemen that they should have been able 
to work at all a legal system such as has been described, 
it need hardly be said that it did not work smoothly. 
The Icelanders were a people of warriors, little accus- 
tomed to restrain their passions, and holding revenge 
for a sacred duty. The maintenance of order at the 
Alping was entrusted to the GoSi of the spot, and it was 
strictly forbidden to w r ear arms while the meeting lasted. 
The closing of the Aiding was called Yapnatak (weapon- 
taking, wapentake), because the arms that had been laid 
aside were taken when men started to ride home from 
the ping. But the arms were after all only left in the 
booth, and more than once it happened that the party 
which found itself unsuccessful in a lawsuit seized sword 
and spear and fought out the issue in a bloody battle, 
from which sprang again new blood-feuds and new law- 
suits. It is not very often that the Sagas give us a 
glimpse of the conduct of business at the Al]ing; but 
one such lawsuit, followed by a combat, which arose 
when the suit broke down on a technical point, is de- 
scribed with wonderful force and spirit in the famous 



292 PRIMITIVE ICELAND 

Saga of Njal Thorgeirsson, a masterpiece of literature 
in the freshness and brilliance of its narrative. 

We hear occasionally of the passing of particular laws 
at an Aiding. In a.d. 994, for instance, it was enacted 
that the suit for compensation for homicide which was 
brought, according to the general practice of the north- 
ern nations, by and for the benefit of the nearest relatives 
of the slain, a right which has survived in the law of 
Scotland under the name of Assythment, and has been 
partially introduced into the law of England by the Act 
9 & 10 Vict. c. 93 (commonly called Lord Campbell's 
Act), should in future not be brought by a woman or by 
a child under sixteen years of age, but by the nearest 
male relative. This provision was suggested by a case 
that had occurred just before, when inadequate compen- 
sation had been recovered for the slaughter of a chief- 
tain named Arnkel, owing to the mismanagement of the 
suit by his widow. Again, in a.d. 1006 we are told of 
the abolition of the judicial combat on the occasion of 
an indecisive duel between the poet and Viking Gunn- 
laug Ormstunga (Snake's tongue a ) and another poet 
named Hrafn, the details of which are recorded in one 
of the most beautiful and touching of the early Sagas. 
Gunnlaug had been betrothed to Helga the Fair, one of 
the most famous heroines of Icelandic story, but having 
been detained in England by King Ethelred II, whose 
guest he had previously been in London 2 and whose 
praises he had been celebrating in verse, had failed to 
return at the appointed time, and found Helga, who had 
yielded to the importunities of her relatives, already 
married to Hrafn. According to the custom of the 
North, which then allowed any man to require another 
either to give up his wife and all his property or defend 
her and it by arms, Gunnlaug came to the Aiding and 

» So called from his satirical powers. 

2 The Saga says (Gunnlaugs Saga Orjnstungu, chap, vii) that in the days of 
Ethelred son of Edgar (A'SalraSr Jatgeirsson) the same tongue was spoken in 
England and Denmark as in Norway, and that this continued in England till Will- 
iam the Bastard won England, after \^hom Welsh (Valsk = French) was spoken. 



PRIMITIVE ICELAND 293 

formally challenged Hrafn, and they fought, each with 
his second, a solemn duel on the island in the Oxara 
which was set apart for that purpose. A dispute arose 
after the first encounter, and the combatants were sepa- 
rated. Gunnlaug wished to resume the combat, but the 
law already referred to, prohibiting formal duels in fu- 
ture, was passed next day by the Logretta ; and he un- 
willingly obeyed, for a breach of it would have exposed 
him to the penalties of outlawry. Helga, however, re- 
fused to live any longer with her husband Hrafn, and 
next year the two rivals sailed by agreement to Norway, 
just as, fifty years ago, persons fearing to fight a duel 
in England used to cross to Calais for the purpose. 
Years passed before they met in the wild country east 
of Throndhjem. There they fought out their quarrel. 
Gunnlaug smote off his enemy's foot, and then proposed 
to stop the combat. Hrafn however, supporting him- 
self against a tree, wished to fight on, but as he was 
tortured by thirst, he besought his opponent to fetch him 
a draught of water from a brook hard by, promising not 
to deceive him. The chivalric Gunnlaug brought the 
water in his helmet, whereupon Hrafn, taking the water 
with his left hand, suddenly raised his sword and, with 
all his remaining strength, smote Gunnlaug on his bared 
head. ' Thou hast done ill and deceived me,' said Gunn- 
laug, ' seeing that I trusted you.' ' So is that,' answered 
Hrafn, ' but I grudged thee the love of Helga the Fair.' 
Then they fought on. Hrafn was slain, and in a few 
hours Gunnlaug died of his wounds 1 . The news was 
brought to Iceland, and after a time Helga, thinking 
ever of Gunnlaug, and often spreading out upon her 
knees a garment which Gunnlaug had given to her, pined 
away and died likewise. 

Another striking scene at the Aiding has been pre- 

1 The Saga adds that very shortly after the combat, and long before the news 
of it could have reached Iceland, the ghosts both of Gunnlaug and of Hrafn ap- 
peared in dreams to their respective fathers in Iceland, and recited poems describ- 
ing their deaths. Illugi the Black, Gunnlaug's father, remembered the poem he 
heard and repeated it aloud next day. The Saga gives both poems. This is one 
of the earliest Teutonic instances of a death-apparition. 



294 PRIMITIVE ICELAND 

served to us in the Saga which relates the introduction 
of Christianity. King Olaf Tryggvason, the most bril- 
liant of all the Norwegian sovereigns, who, having been 
himself converted some ten years before, was hard at 
work converting the stubborn Norwegians by burning 
their houses and torturing themselves, had sent two 
missionaries to Iceland, one of whom, the priest Thang- 
brand, had been obliged to leave Norway on account of 
his violent life, and who signalized himself in Iceland by 
committing two murders in the course of his five 
months' stay, which was then summarily shortened. 
The unworthiness of the minister, however, does not 
seem to have injured the cause he championed. Several 
men of note embraced the new faith, which was of course 
well known to the Icelanders from their intercourse with 
Ireland and Britain, and had the promise of the future 
to recommend it. These men, and also some heathen 
chieftains who thought that acceptance was the best way 
of avoiding civil war, supported the envoys of Olaf, 
when, at the Aiding of the year iooo, they urged upon 
the assembly to decree the abolition of paganism. A 
story goes that, while the debate was at its height, a 
messenger arrived to tell that a volcano had broken out 
thirty miles to the south, and was pouring a flood of lava 
over the pastures. The heathen party accepted the news 
as an omen, and exclaimed, ' This is the wrath of the 
gods at these new rites ; see what you have to expect 
from their anger ! ' ' With whom, then,' said Snorri, a 
leading GoSi who had not yet declared himself, ' with 
whom were the gods angry when this rock was molten 
on which we stand ? ' (pointing to the deep lava rifts that 
lay around the Logberg). By the interposition of the 
Law-Speaker Thorgeir, that which he described as a 
compromise, but which was in reality a surrender by the 
heathen party, was at the same Aiding accepted. The 
people were to be baptized and declare themselves Chris- 
tians, and the temples and images of the old gods were 
to be destroyed ; but those who liked to sacrifice at home 



PRIMITIVE ICELAND 295 

might continue to do so ; and two heathen customs, the 
exposure of new-born infants and the eating of horse- 
flesh, were to be permitted. Some difficulty arose over 
the reluctance of those who came from the North and 
East Quarters of the island to submit to immersion in 
cold water ; but this difficulty was happily overcome by 
the use of the hot springs at Reykir for the rite. 

The century and a half that followed the introduction 
of Christianity was the most brilliant period in the his- 
tory of the island. It was not indeed a time of peace, 
for the old passions and the old superstitions were but 
little altered. Slayings and burnings of houses with 
their inmates went on pretty much as before. But there 
was now added to the stimulus which their free republi- 
can life and their piratical expeditions gave to the na- 
tional spirit the influence of the learning and ideas which 
came in the train of the new faith. The use of writing 
soon spread, and the magnificent Sagas, which are 
among the noblest monuments of Northern genius, were 
nearly all of them produced in this age, though some 
were not committed to parchment before the end of the 
twelfth century. 

For many years the Constitution of the Republic 
seems to have undergone no great alteration. The 
establishment of Christianity did indeed throw consider- 
able power into the hands of the two bishops, and eventu- 
ally produced a strife between the Church and the tem- 
poral magnates resembling that which distracted both 
the Romano-Germanic Empire and England. This 
scarcely affected the position of the GoSi, whose autho- 
rity had now lost so much as it originally possessed of a 
religious character. Snorri, whose appeal to geology is 
said to have decided the Aiding against paganism, was 
himself the priest of the most famous heathen sanctuary 
of the island. But in the beginning of the thirteenth 
century the delicately-framed fabric of the Republican 
Constitution began to break up. The tendency of a fede- 
ration usually is to become less of a federation and more 



296 PRIMITIVE ICELAND 

of a single united state. But in Iceland the federal bond, 
if one can use this name, was always weak, and when a 
powerful member became disobedient, there were no 
legal means of reducing him to submission. By degrees 
the number of priest-chieftainships diminished, the 
GoSorSs, which passed not only by inheritance but also 
by gift or sale, coming to be accumulated in the hands of 
a few great families, who thus acquired a predominant in- 
fluence at the Aiding, were virtually masters of large dis- 
tricts of the country, and marched about like feudal lords 
attended by petty armies. Thus the old blood-feuds as- 
sumed more and more the aspect of civil wars. Piracy 
was now less practised, because the countries which had 
formerly been ravaged were better prepared for defence, 
so the energy that used to spend itself upon the coasts of 
Scotland and Ireland, of North Germany and Gaul, was 
now turned inward, and with fatal results. 

I am not writing the history of Iceland, though indeed 
I wish I were doing so, for the theme is a fascinating 
one. But before closing these scattered observations, 
intended to stimulate rather than to satisfy curiosity, I 
will add three remarks suggested by the sketch that has 
been given. 

The first remark is that Iceland presents one of the 
few instances in history of a breach in the continuity 
of institutional development. The settlers were all of 
Norse stock ; and Norway had in its petty communities a 
rudimentary system of institutions not unlike that de- 
scribed by Tacitus in his account of Germany, or that 
which the conquering Angles and Saxons brought to 
Britain. Each community was an independent Fylki 
(folk). In each Fylki there was a number of nobles, one 
of whom stood foremost as hereditary chieftain, and a 
body of warlike freemen, as well as a certain number of 
slaves. In each there was a popular assembly, the ping, 
corresponding to our Saxon Folk Mot. Now owing to 
the way in which the settlers had planted themselves 
along the coasts of Iceland, and to the fact that they 



PRIMITIVE ICELAND 297 

were less closely aggregated there than men had been 
in Norway, this organization did not reappear in the 
new land. There was indeed everywhere a ping, for the 
habit of meeting to deal with lawsuits and other mat- 
ters of common interest was cherished as the very foun- 
dation of society. But an Icelandic community was not 
a Fylki. It was not an old natural growth, but rather a 
group of families whose tie was at first only that of local 
proximity and thereafter that also of worship at a com- 
mon temple. The GoSi, though he became the centre 
of this group, was not a chieftain with a hereditary claim 
to leadership, and was not necessarily of any higher 
lineage than some of his pingmen. Such eminent and 
high-born men as Njal for instance and Egil Skalla- 
grimsson were not GoSis. The GoSorS was really a 
new institution, due to the special circumstances of Ice- 
land, and apparently without precedent among the Teu- 
tonic races. Still more plainly was the organization of 
the Republic with its scheme of Courts and its Logretta 
a new creation, due to the wisdom and public spirit of 
the leading men of the nation, and not a purely natural 
growth. 

Secondly, as the Icelandic Republic is a new form of 
political society, so the Alping, in which the unity of 
the Republic found visible expression, is a unique body, 
which cannot be referred to any one of the familiar types 
of assembly. It is not a Primary Assembly, for though 
all freemen are present, only a limited number of persons 
are entitled to exercise either judicial or legislative func- 
tions. Neither is it a Representative Assembly, for no 
one was elected to sit in it as a delegate from others. 
The GoSis sat each by his own right, and the other mem- 
bers as nominees of the GoSis. Neither again is it a sort 
of King's Council, like the Curia Regis of mediaeval 
England, consisting of magnates and official advisers 
summoned by a monarch. If parallels to it are to be 
sought, they are to be sought rather in bodies such as 
the Roman Senate may have been in its earlier form, a 



298 PRIMITIVE ICELAND 

sort of council of the heads of organized communities ; 
yet the differences between the Roman gentes and the 
Icelandic pingmen, and the absence of an executive 
magistrate like the Roman king, make the parallel any- 
thing but close. Still more remote is the resemblance 
which the Alping might be deemed to bear to the coun- 
cil of a league, such as was the Swiss Confederation be- 
fore 1799, or such as the Diet of the Romano-Germanic 
Empire in its later days. 

The comparison of Iceland to a federation suggests 
a third question. Why did not the Republic develop into 
a united State, whether republican or monarchical, as did 
most of the nations of mediaeval Europe ? 

Out of several reasons that might be assigned I will 
mention three only, two of them political, the third 
physical. 

In Iceland there was no single great family with any 
hereditary claim to stand above the others, while all 
the leading families were animated by a high sense of 
pride and a pervading sentiment of equality. This love 
of equality remains among the sons of the old Norse- 
men both in Iceland and in Norway, and is indeed 
stronger there than anywhere else in Europe. 

Iceland had not, and could not have, any foreign wars. 
There was therefore no external strife to consolidate 
her people, no opportunity for any leader to win glory 
against an enemy, or to create an army on which to base 
his power. All the wars were civil wars, and tended to 
disunion. 

The third reason is to be found in the nature of the 
country. The island, larger than Ireland, has practically 
no land fit for tillage, and very little fit even for pasture. 
Neither has it any internal trade. The interior is occu- 
pied by snow mountains and glaciers and lava-fields and 
wastes of black volcanic sand or pebbles. Iceland is 
really one huge desert with some habitable spots scat- 
tered along its coasts. It was the Desert that most of 
all destroyed the chances of political unity under a re- 



PRIMITIVE ICELAND 299 

public by dividing the people into numerous small 
groups, far removed from one another, and in many 
places severed by rugged and barren wastes, or by tor- 
rents difficult to cross. 

Nevertheless, although the Republic was evidently 
destined to perish, it is possible that had Iceland been 
left to herself the rivalry of the two or three great fac- 
tions which divided it, and were usually in arms against 
one another, would have ended in the triumph of one 
of them, and in the establishment of a monarchy, or (less 
probably) of several independent rival principalities. 
But a new and more formidable figure now appeared on 
the scene. The successors of King Harald the Fair- 
haired had always held that the Icelanders, since their 
ancestors had come from Norway, ought to own their 
supremacy 1 , and they argued that as monarchical gov- 
ernment was divinely appointed, and prevailed every- 
where in Continental Europe, no republic had a right 
to exist. King Hakon Hakonsson (Hakon IV), one of 
the greatest among the kings of Norway, now found in 
the distracted state of the island a better opportunity 
of carrying out the plans which his predecessors Olaf 
Tryggvason and Olaf the Saint had been obliged, by the 
watchfulness of the Aljung, to abandon. By bribes and 
by threats, by drawing the leading Icelanders to his 
Court, and sending his own emissaries through the 
island, he succeeded in gaining over the few chiefs who 
now practically controlled the Aljung, and at the meeting 
of midsummer, a.d. 1262 (one year before the battle of 
Largs, which saved Scotland from the invasion of this 
very Hakon), the Southern, Western and Northern 
Quarters accepted the King of Norway as their sove- 
reign, while in 1264 (the year of the summoning of the 
first representative Parliament of England by Earl 
Simon de Montfort) the remaining districts which had 

1 This claim of a Crown to the allegiance of emigrants who had passed into 
new lands reminds one of that made by the British Government, down to 1852 and 
1854, as respects the Dutch farmers who had gone forth into the wilderness of 
South Africa in 1836. 



300 PRIMITIVE ICELAND 

not yet recognized the Norwegian Crown, now held 
by Magnus son of Hakon, made a like submission. 
Thenceforward Iceland has followed the fortunes first 
of Norway and then of Denmark. In 1814, when Nor- 
way was severed from the Danish and transferred to the 
Swedish Crown, Iceland ought to have gone with Nor- 
way. But nobody at the Congress of Vienna knew or 
cared about the matter * : and so Iceland remains at- 
tached to Denmark, for which she has little love. 

With the free republic the literature which had given 
it lustre withered up and disappeared. Only one work 
of high merit, the religious poem called The Lily, was 
produced in the centuries that succeeded down to the 
Reformation, when the spirit of the people was again 
stirred, and a succession of eminent writers began which 
has never failed down to our own day. But in the dark- 
est times, in the ignorance and gloom of the fifteenth 
century, in the pestilences and famine caused by the ter- 
rible volcanic eruptions of the eighteenth, which are 
said to have destroyed one-fifth of the population, the 
Icelanders never ceased, to cherish and enjoy their 
ancient Sagas. No farmhouse wanted its tiny store of 
manuscripts, which were and still are read aloud in the 
long nights of winter, while the women spin and the 
men make nets and harness. And it is beyond doubt 
chiefly owing to the profusion and the literary splendour 
of these works of a remote antiquity — works produced in 
an age when England and Germany, Italy and France 
had nothing better than dull monkish annalists or the 
reciters of such a tedious ballad epic as the Song of the 
Nibelungs — that the Icelandic language has preserved 
its ancient strength and purity, and that the Icelandic 
nation, a handful of people scattered round the edge of a 
vast and dreary wilderness, has maintained itself, in face 
of the overwhelming forces of nature, at so high a level 
of culture, virtue and intelligence. 

1 The preliminaries to'the Treaty of Kiel by which Norway was severed from 
the Danish Crown to be attached to the Swedish refer to Iceland, the Faeroe 
Isles, and Greenland as having 'never belonged to Norway.' 



VI 

THE UNITED STATES CONSTI- 
TUTION AS SEEN IN THE PAST 

The Predictions of Hamilton and Tocqueville 

He who desires to discover what have been the main 
tendencies ruling and guiding the development of Ameri- 
can institutions, will find it profitable to examine what 
were the views held and predictions delivered, at dif- 
ferent epochs in the growth of the Republic, by acute 
and well-informed observers. There is a sort of dra- 
matic interest in this method of inquiry, and it is calcu- 
lated to temper our self-confidence in judging the pheno- 
mena of to-day. Besides, it helps us to realize, better 
than we can do merely by following the course of events, 
what aspect the political landscape wore from time to 
time. When we read a narrative, we read into the events 
our knowledge of all that actually flowed from them. 
When we read what the contemporary observer ex- 
pected from them as he saw them happening we reach 
a truer comprehension of the time. 

To collect and set forth a representative anthology of 
political prophecies made at critical epochs in the history 
of the United States, would be a laborious undertaking, 
for one would have to search through a large number 
of writings, some of them fugitive writings, in order to 
present adequate materials for determining the theories 
and beliefs prevalent at any given period. I attempt 



302 HAMILTON AND T0CQVE7ILLE 

nothing so ambitious. I desire merely to indicate, by 
a comparatively simple example, how such a method 
may be profitably followed, disclaiming any pretensions 
to dig deep into even the obvious and familiar materials 
which students of American history possess. 

For this purpose, then, I will take two famous books 
— the one written at the very birth of the Union by those 
who watched its cradle, and recording incidentally, and 
therefore all the more faithfully, the impressions and 
anticipations of the friends and enemies of the infant 
Constitution ; the other a careful study of its provisions 
and practical working by a singularly fair and penetrat- 
ing European philosopher. I choose these books not 
only because both are specially representative and of 
rare literary merit, but because they are easily accessible 
to European as well as American readers, who may, 
by referring to their pages, supply the omissions which 
want of space will compel me to make, and may thereby 
obtain a more full and graphic transcript of contempo- 
rary opinion. One of these books is The Federalist * — a 
series of letters recommending the proposed Constitu- 
tion for adoption to the people of New York, written in 
1788 by Alexander Hamilton, afterwards Secretary of 
the Treasury, James Madison, afterwards President 
from 1809 to 1817, and John Jay, afterwards Chief Jus- 
tice from 1789 to 1795. They were all signed Pnblius. 
The other, which falls not quite halfway between 1788 
and our own time, is the Democracy in America of Alexis 
de Tocqueville. 

I. The United States at the Adoption of the 
Constitution. 

I begin by briefly summarizing the record which The 
Federalist preserves for us of the beliefs of the opponents 
and advocates of the Draft Constitution of 1787 regard- 

1 There are several good editions of The Federalist. The latest and one of the 
best known to me is that edited by Mr. Paul Leicester Ford (New York, 1898). 



HAMILTON AND TOCQUEYILLE 303 

ing the forces then at work in American politics ancl 
the probable future of the nation. 

To understand those beliefs, however, we must bear 
in mind what the people of the United States then were, 
and for that purpose I will recall the reader's attention 
to some of the more salient aspects of the Republic at 
the epoch when its national life began. 

In 1783 the last British soldier quitted New York, the 
last stronghold that was held for King George. In 1787 
the present Constitution of the United States was framed 
by the Convention at Philadelphia, and in 1788 accepted 
by the requisite number of States (nine). In 1789 
George Washington entered on his Presidency, the first 
Congress met and the machine began to work. It was 
a memorable year for Europe as well as for America — 
a year which, even after the lapse of more than a cen- 
tury, we are scarcely yet ripe for judging, so many sor- 
rows as well as blessings, ttoWo. fxev iaOXa fie^iy/Aem, iro\\a 
Se Xvypd, were destined to come upon mankind from 
those elections of the States-General which were pro- 
ceeding in France while Washington was being installed 
at Philadelphia. 

All of the thirteen United States lay along the Atlantic 
coast. Their area was 827,844 square miles, their popu- 
lation 3,929,214, little more than half the population of 
New York State in 1900. Settlers had already begun to 
cut the woods and build villages beyond the Alleghanies ; 
but when Kentucky was received as a State into the 
Union in 1792, she had a population of only 80,000. The 
population was wholly of English (or Anglo-Scottish) 
stock, save that a few Dutch were left in New York, a 
few persons of Swedish blood in Delaware, and some 
isolated German settlements in Pennsylvania. But in 
spite of this homogeneity the cohesion of the States was 
weak. Communication was slow, difficult and costly. 
The jealousies and suspicions which had almost proved 
fatal to Washington's efforts during the War of Inde- 
pendence were still rife. There was some real conflict, 



304 HAMILTON AND TOCQVEVILLE 

and a far greater imagined conflict, of interests between 
the trading and the purely agricultural States, even more 
than between the slave States and those in which slavery 
had practically died out. Many competent observers 
doubted whether the new Federal Union, accepted only 
because the Confederation had proved a failure and the 
attitude of foreign powers was threatening, could main- 
tain itself in the face of the strong sentiment of locaL 
independence animating the several colonies, each of 
which, after throwing off the yoke of Britain, was little 
inclined to brook any control but that of its own legisla- 
ture. The new Constitution was an experiment, or 
rather a bundle of experiments, whose working there 
were few data for predicting. It was a compromise, and 
its own authors feared for it the common fate of compro- 
mises — to satisfy neither party and to leave open rents 
which time would widen. In particular, it seemed most 
doubtful whether the two branches of the Legislature, 
drawn from so wide an area and elected on different 
plans, would work harmoniously, and whether general 
obedience would be yielded to an executive President 
who must necessarily belong to and seem to represent 
one particular State and section of the country. Par- 
ties did not yet exist, for there was as yet hardly a na- 
tion; but within a decade they grew to maturity and 
ferocity. One of them claimed to defend local self-gov- 
ernment, the rights of the people, democratic equality ; 
I the other, the principle of national unity and the au- 
: thority of the Federal power. One sympathized with 
France, the other was accused of leaning to an English 
alliance. They were, or soon came to be, divided not 
merely on burning questions of foreign policy and home 
policy, but also — and this was an issue which mixed itself 
up with everything else — as to the extent of the powers 
to be allowed to the central Government and its rela- 
tions to the States — questions which the curt though ap- 
parently clear language of the Constitution had by no 
means exhausted. 



HAMILTON AND TOCQUEVILLE 305 

Slavery was not yet a burning question — indeed it 
existed to some slight extent in the Middle as well as in 
the Southern States, but the opposition of North and 
South was already visible. The Puritanism of New Eng- 
land, its industries and its maritime commerce, gave it 
different sentiments as well as different interests from 
those which dominated the inhabitants of the South, a 
population wholly agricultural, among whom the influ- 
ence of Jefferson was strong, and theories of extreme 
democracy had made progress. 

There was great diversity of opinion and feeling on 
all political questions in the America of those days, and 
the utmost freedom in expressing it. Over against the 
extreme democrats stood an illustrious group whose 
leader was currently believed to be a monarchist at 
heart, and who never concealed his contempt for the 
ignorance and folly of the crowd. Among these men, 
and to a less extent among the Jeffersonians also, there 
existed no small culture and literary power, and though 
the masses were all orthodox Christians and, except in 
Maryland, orthodox Protestants, there was no lack of 
scepticism in the highest circles. One may speak of 
highest circles, for social equality, though rapidly ad- 
vancing and gladly welcomed, was as yet rather a doc- 
trine than a fact : and the respect for every kind of au- 
thority was great. There were neither large fortunes 
nor abject poverty : but the labouring class, then far less 
organized than it is now, deferred to the middle class, 
and the middle class to its intellectual chiefs. The clergy 
were powerful in New England : the great colonial fami- 
lies enjoyed high consideration in New York, in Penn- 
sylvania, and above all in Virginia, whose landowners 
seemed to reproduce the later semi-feudal society of 
England. Although all the States were republics of a 
hue already democratic, every State constitution re- 
quired a property qualification for the holding of office 
or a seat in the Legislature, and, in most States, a simi- 
lar condition was imposed even on the exercise of the 



306 HAMILTON AND TOCQUEVILLE 

suffrage. Literary men (other than journalists) were 
rare, the universities few and old-fashioned in their 
methods, science scarcely pursued, philosophy absorbed 
in theology and theology dryly dogmatic. But public 
life was adorned by many striking figures. Five men at 
least of that generation, Washington, Franklin, Hamil- 
ton, Jefferson and Marshall, belong to the history of the 
world; and a second rank which included John Adams, 
Madison, Jay, Patrick Henry, Gouverneur Morris, 
Roger Sherman, James Wilson, Albert Gallatin, and 
several other gifted figures less familiar to Europe, must 
be mentioned with respect. 

Everybody professed the principles of the Declaration 
of Independence, and therefore held a republican form 
of government to be the only proper, or at any rate the 
only possible form for the central authority as well as for 
the States. But of the actual working of republican gov- 
ernments there was very little experience, and of the 
working of democracies, in our present sense of the 
word, there was really none at all beyond that of the 
several States since 1776, when they broke loose from 
the British Crown. Englishmen are more likely than 
other Europeans to forget that in 1788 there was in the 
Old World only one free and no democratic nation 1 . 
In Europe there now remain but two strong monarchies, 
those of Russia and Prussia, while the Western hemi- 
sphere, scarcely excepting Dutch and British Guiana 
and Canada, is entirely (at least in name) republican. 
But the world of 1788 was a world full of monarchs — 
despotic monarchs — a world which had to go back for 
its notions of popular government to the common- 
wealths of classical antiquity. Hence the speculations 
of those times about the dangers, and merits, and ten- 
dencies characteristic of free governments, were and 
must needs be vague and fantastic, because the mate- 
rials for a sound induction were wanting. Wise men, 



1/ 



1 The Swiss Confederation was hardly yet a nation, and few of the cantons 
were governed democratically. 



HAMILTON AND TOCQVETILLE 307 

when forced to speculate, recurred to the general prin- 
ciples of human nature. Ordinary men went off into the 
air and talked at large, painting a sovereign people as J 
reckless, violent, capricious on the one hand, or virtu- | 
ous and pacific on the other, according to their own pre- 
dilections, whether selfish or emotional, for authority 
or for liberty. Though no one has yet written the na- 
tural history of the masses as rulers, the hundred years 
since 1788 have given us materials for such a natural 
history surpassing those which Hamilton possessed al- 
most as much as the materials at the disposal of Darwin 
exceeded those of Buffon. Hence in examining the 
views of the Federalist writers 1 and their antagonists, 
we must expect sometimes to find the diagnosis inexact 
and the prognosis fanciful. 



II. Predictions of the Opponents and Advocates 
of the Constitution. 

Those who opposed the Draft Constitution in 1787, 
a party both numerous and influential in nearly every 
State, were the men specially democratic and also spe- 
cially conservative. They disliked all strengthening of 
government, and especially the erection of a central au- 
thority. They were satisfied with the system of sove- 
reign and practically independent States. Hence they 
predicted the following as the consequences to be ex- 
pected from the creation of an effective Federal execu- 
tive and legislature 2 . 

1. The destruction of the States as commonwealths. 
The central government, it was said, would gradually 
encroach upon their powers ; would use the federal army 

1 Of these writers Hamilton must be deemed the leading- spirit, not merely 
because he wrote by far the larger number of letters, but because his mind was 
more penetrating and commanding than either Madison's or Jay's. Madison ren- 
dered admirable service in the Philadelphia Convention of 1787, but afterwards 
yielded to the influence of Jefferson, a character with less balance but more force 
and more intellectual fertility. 

2 I take no account of those objections to the Constitution which may be 
deemed to have been removed by the first eleven amendments. 



308 HAMILTON AND TOCQUEYILLE 

to overcome their resistance; would supplant them in 
the respect of their citizens ; would at last swallow them 
up. The phrase ' consolidation of the Union,' which 
had been used by the Convention of 1787 to recommend 
its draft, was laid hold of as a term of reproach. ' Con- 
solidation,' the absorption of the States by or into one 
centralized government, became the popular cry, and 
carried away the unthinking. 

2. The creation of a despot in the person of the Presi- 
dent. His legal authority would be so large as not only 
to tempt him, but to enable him, to extend it further, 
at the expense of the liberties both of States and of peo- 
ple. ' Monarchy,' it was argued, ' thrown off after such 
efforts, will in substance return with this copy of King 
George III, whose command of the federal army, power 
over appointments, and opportunities for intriguing with 
foreign powers on the one hand and corrupting the 
legislature on the other 1 , will render the new tyrant 
more dangerous than the old one. Or if he be more 
open to avarice than to ambition, he will be the tool of 
foreign sovereigns and the means whereby they will con- 
trol or enslave America 2 . 

3. The Senate will become an oligarchy. Sitting for 
six years, and not directly elected by the people, it 
' must gradually acquire a dangerous pre-eminence in 

1 See The Federalist, No. LIV. 

2 The Federalist, No. LXVI, p. 667. 'Calculating upon the aversion of the 
people to monarchy, the writers against the Constitution have endeavoured to 
enlist all their jealousies and apprehensions in opposition to the intended Presi- 
dent of the United States, not merely as the embryo but as the full-grown 
progeny of that detested parent. They have to establish the pretended affinity, 
not scrupled to draw resources even from the regions of fiction. The authority of 
a magistrate in few instances greater, in some instances less, than those of a Gov- 
ernor of New York, have been magnified into more than royal prerogatives. He 
has been decorated with attributes superior in dignity and splendour to those of a 
King of Great Britain. He has been shown to us with the diadem sparkling on 
his brow and the imperial purple flowing in his train. He has been seated on a 
throne surrounded with minions and mistresses, giving audience to the envoys 
of foreign potentates in all the supercilious pomp of majesty. The images of 
Asiatic despotism and voluptuousness have scarcely been wanting to crown 
the exaggerated scene. We have been taught to tremble at the terrific visages 
of murdering janizaries, and to blush at the unveiled mysteries of a future 
seraglio.' 

These were the days when Johnson and Gibbon ruled English style. 



HAMILTON AND TOCQUEVILLE 309 

the government, and finally transform it into a tyranni- 
cal aristocracy V 

4. The House of Representatives will also, like every 
other legislature, aim at supremacy. Elected only once 
in two years, it will forget its duty to the people. It 
will consist of ' the wealthy and well-born/ and will 
try to secure the election of such persons only as its 
members 2 . 

5. The larger States will use the greater weight in the 
government which the Federal constitution gives them 
to overbear the smaller States. 

6. The existence of a strong central government is 
not only likely, by multiplying the occasions of diplo- 
matic intercourse with foreign powers, to give openings 
for intrigues by them dangerous to American independ- 
ence, but likely also to provoke foreign wars, in which 
the republic will perish if defeated, or if victorious main- 
tain herself only by vast expenditure, with the additional 
evil of having created in an army a standing menace to 
freedom. 

That some of these anticipations were inconsistent 
with others of them was no reason why even the same 
persons should not resort to both in argument. Any 
one who wishes to add to the number, for I have quoted 
but a few, being those which turn upon the main out- 
lines of the Philadelphia draft, may do so by referring 
to the record, known at Elliott's Debates, of the discus- 
sions in the several State Conventions which deliberated 
on the new Constitution. It is an eminently instructive 
record. 

I pass from the opponents of the Constitution to its 
advocates. Hamilton and its friends sought in it a 
remedy against what they deemed the characteristic 
dangers of popular government. It is by dwelling on 
these dangers that they recommend it. We can per- 
ceive, however, that, while lauding its remedial power, 

1 The Federalist, No. LXII. 

a The Federalist, Nos. LVI and LIX. 



310 HAMILTON AND TOCQUEVILLE 

they are aware how deep-seated such dangers are, and 
how likely to recur even after the adoption of the Con- 
stitution. The language which Hamilton held in private 
proves that he desired a more centralized government, 
which would have approached nearer to that British 
Constitution which he regarded as being, with all its 
defects (and partly owing to its corruptions !) the best 
model for free nations 1 . He feared anarchy, and 
thought that only a strong national government could 
avert it. And in a remarkable letter written in Febru- 
ary, 1802, under the influence of disappointment with the 
course events were then taking, he describes, in his 
somewhat sweeping way, the Constitution he was ' still 
labouring to prop ' as a ' frail and worthless fabric' 

We may therefore legitimately treat his list of evils 
to be provided against by the new Federal Government 
as indicating the permanently mischievous tendencies 
which he foresaw. Some of them, he is obliged to admit, 
cannot be wholly averted by any constitutional devices, 
but only by the watchful intelligence and educated virtue 
of the people. 

The evils chiefly feared are the following: — 

1. The spirit and power of faction, which is so clearly 
the natural and necessary offspring of tendencies always 
present in mankind, that wherever liberty exists it must 
be looked for 2 . 

Its causes are irremovable ; all you can do is to control 
its effects, and the best prospect of overcoming them 
is afforded by the representative system and the wide 
area of the United States with the diversities among its 
population. 

2. Sudden impulses, carrying the people away and in- 
ducing hasty and violent measures 3 . 

3. Instability in foreign policy, due to changes in the 

1 Though he, like other observers of that time, had not realized, and might 
not have relished, the supremacy, now become omnipotence, which the House of 
Commons had already won. 

2 The Federalist, No. X (written by Madison), and in other letters. 

3 The Federalist, No. LXII. 



HAMILTON AND TOCQUEVILLE 311 

executive and in public sentiment, and rendering neces- 
sary the participation of a comparatively small council 
or Senate in the management of this department. 

4. Ill-considered legislation. ' Facility and excess of 
law-making 1 ,' and 'inconstancy and mutability in the 
laws 2 ,' form the ' greatest blemish in the character and 
genius of our governments.' 

5. The Legislature is usually the strongest power in 
free governments. It will seek, as the example of the 
English Parliament shows, to encroach upon the other 
departments ; and this is especially to be feared from 
the House of Representatives as holding the power of 
the purse 3 . 

6. The States, and especially the larger States, may 
overbear the Federal Government. They have closer 
and more constant relations with the citizen, because 
they make and administer the ordinary laws he lives 
under. His allegiance has hitherto belonged to them, 
and may not be readily given to the central authority. 
In a struggle, should a struggle come, State power is 
likely to prevail against Federal power. 

7. There is in republics a danger that the majority 
may oppress the minority. Already conspicuous in some 
of the State governments, as for instance in Rhode 
Island, this danger may be diminished by the applica- 
tion of the federal system to the great area of the Union, 
where ' society will be broken into so many parts, in- 
terests, and classes of citizens, that the rights of indi- 
viduals or of the minority will be in little danger from 
interested combinations of the majority *.' 

8. Another source of trouble is disclosed by the rash 

1 The Federalist, No. LXI. 

2 The Federalist, No. LXXII. 

3 ' The Legislative Department is everywhere (r. e. in all the States) extending 
the sphere of its activity and drawing all power into its impetuous vortex. . . . 
It is against the enterprising ambition of this department that the People ought to 
indulge all their jealousy and exhaust all their precautions' {The Federalist, No. 
XLVII). The people have now begun to resort to precautions; but it is not the 
ambition of State legislatures that is feared, it is their subserviency to private 
interests or the party machine. 

4 The Federalist, No. L. 



312 HAMILTON AND TOCQUEVILLE 

and foolish experiments which some States have tried 
in passing laws which threaten the validity of contracts 
and the security of property. There are also signs of 
weakness in the difficulty which State Governments have 
found in raising revenue by direct taxation 1 . Citizens 
whose poverty does not excuse their want of public 
spirit refuse to pay; and the administration fears to 
coerce them. 

Not less instructive than the fears of The Federalist 
writers are their hopes. Some of the perils which have 
since been disclosed are not divined. Some institutions 
which have conspicuously failed are relied on as full of 
promise. 

The method of choosing the President is recom- 
mended with a confidence the more remarkable because 
it was the point on which the Convention had been most 
divided and had been latest in reaching an agreement. 

' If the manner of the appointment of the Chief Magi- 
strate be not perfect, it is at least excellent. It unites 
in an eminent degree all the advantages the union of 
which was to be wished for. . . . The process of elec- 
tion affords a moral certainty that the office of President 
will never fall to the lot of any one who is not in an 
eminent degree endowed with the requisite qualifica- 
tions. Talents for low intrigue, and the little arts of 
popularity, may alone suffice to elevate a man to the 
first honours in a single State, but it will require other 
talents and a different kind of merit to establish him in 
the confidence and esteem of the whole Union, or of so 
considerable a portion of it as would be necessary to 
make him a successful candidate for the distinguished 
office of President of the United States. It will not be 
too strong to say that there will be a constant probability 
of seeing the station filled by characters pre-eminent for 
ability and virtue V 

1 The Federalist, No. XII. 

2 The Federalist, No. LXVII. In a. d. 1800, twelve years after Hamilton 
wrote this passage, the contest for the Presidency lay between Jefferson and 
Aaron Burr, and Hamilton was compelled by his sense of Burr's demerits to 



HAMILTON AND TOCQVEVILLE 313 

It is assumed that America will continue an agri- 
cultural and (to a less extent) a commercial country, 
but that she will not develop manufactures ; and also 
that the fortunes of her citizens will continue to be 
small 1 . No serious apprehensions regarding the influ- 
ence of wealth in elections or in politics generally are 
expressed. 

The contingency of a division of the States into two 
antagonistic groups is not contemplated. When the 
possibility of State combinations is touched on, it is 
chiefly with reference to the action of small and of large 
States respectively. In particular no hint is dropped as 
to the likelihood of the institution of slavery becoming 
a bond to unite the Southern States and a cause of quar- 
rel between them and the Northern. Yet slavery had 
given trouble in the Philadelphia Convention, and an 
opposition of North and South grounded upon it soon 
emerged. 

Although the mischiefs of faction are dwelt on, noth- 
ing indicates that its embodiment in highly developed 
party systems, whose organizations might overshadow 
the legal government, had occurred to any one's mind. 
Still less, of course, is there any anticipation of the influ- 
ence to be exerted on politics by the distribution of 
offices. Not till long afterwards were they treated as 
' spoils of war.' 

urge his party to vote (when the choice came before the House of Representa- 
tives) for Jefferson, his own bitter enemy. What he thought of Burr, who, but 
for his intervention, would certainly have obtained the chief magistracy of the 
nation (and by whose hand he ultimately died), may be inferred from the fact that 
he preferred as President the man of whom he thus writes : ' I admit that his 
(Jefferson's) politics are tinctured with fanaticism ; that he is too much in earnest 
in his democracy ; that he has been a mischievous enemy to the principal meas- 
ures of our past administration ; that he is crafty and persevering in his objects ; 
that he is not scrupulous about the means of success, nor very mindful of truth ; 
and that he is a contemptible hypocrite. But, &c.' (Letter to James A. Bayard, 
Jan. 16, 1801.) 

After this it is superfluous, as it would be invidious, to dwell on the deficiencies 
of some recent Presidents or Presidential candidates. 

1 ' The private fortunes of the President and Senators, as they must all be 
American citizens, cannot possibly be sources of danger' (The Federalist, No. 
LIV). 



314 HAMILTON AND TOCQVEVILLE 

III. Criticism of the Predictions of 1788. 

Let us now see which of these views and forecasts 
have been verified by the event. 

Of those put forth by the opponents of the Constitu- 
tion not one has proved true. The States are still 
strong, the President is not a despot, though for a time 
during the Civil War he came near being one, nor has 
he ever fallen under the influence of any European 
power. The House does not consist of the ' wealthy and 
well-born.' The larger States do not combine against 
nor press hardly on the smaller. No great country has 
had so few wars or indeed so few foreign complications 
of any kind 1 . The Senate is still often called 'an oli- 
garchy,' but this means only that it consists of compara- 
tively few persons, most of them wealthy, and that, it has 
a strong corporate feeling in favour of the personal 
interests of each of its members. It is really as depend- 
ent on public opinion as the House, perhaps even more 
afraid of public opinion, and as directly the creature 
of party machinery, though less directly of popular 
election. 

I One is surprised to find that of the many arrows of 
accusation levelled at the Constitution, all should have 
'flown wide of the mark. 

The deeper insight and more exact thinking of Hamil- 
ton and Madison fastened upon most of the real and 
permanent weaknesses in popular government. Yet 
even they could not foresee the particular forms which 
those weaknesses would assume in the new nation. To 
examine in detail the eight points specified above would 
involve an examination of American history for a cen- 
tury. I shall therefore simply indicate in a word or two 
the extent to which, in each case, the alarms or predic- 
tions of The Federalist may be deemed well grounded. 

1 Three wars since 1789 : that of 1812, that of 1845, and that of 1898. Every one 
of these might no doubt have been avoided with honour, and two of them savoured 
of aggression, but the same may be said of nearly all the wars of European 
States. 



HAMILTON AND TOCQUEVILLE 315 

1. The spirit of faction has certainly, as Madison ex- 
pected, proved less intense over the large area of the 
Union than it did in the Greek republics of antiquity or 
in the several States from 1776 to 1789. On the other 
hand, the bonds of sympathy created by the Federal sys- 
tem have at times enabled one State to infect another 
with its own vehemence. But for South Carolina, there 
would have been no secession in 1861. Since 1880 the 
' demon of faction ' has been less powerful in the parties 
than at any previous date since the so-called ' Era of 
Good Feeling ' in 1820. 

2. Sudden popular impulses there have been. But 
finding a ready and constitutional expression in elec- 
tions, they do not induce a resort to arms, while the 
elaborate system of checks on legislation seldom allows 
them to result in the passing of dangerous measures by 
Congress. In some States the risk of bad laws is serious, 
but it is lessened by the provisions of the Federal Con- 
stitution as well as by the veto power of the State Gov- 
ernor and the restrictions of recent State Constitutions. 

3. The early history of the Union furnishes illustra- 
tions of feebleness and inconstancy in foreign policy, 
yet not greater than those which mark most monarchies. 
Royal caprice, or the influence of successive favourites, 
has proved more pernicious in absolute kingdoms or 
principalities than popular fickleness in republics. That 
the foreign policy of the United States was singularly 
consistent down till 1898, when it suddenly took an en- 
tirely ' new departure,' was not due to the Senate. It 
must be credited partly to the good sense of the people, 
partly to the fact that the position and interests of the 
nation prescribed certain broad and simple lines. 

4. Whatever may be thought of its handling of private 
bills, Congress was seldom prone to haste or reckless 
expenditure in legislation on public matters, until it 
passed the amazing Pensions Act of 1890. Nor has it 
given the country too many laws. It has been on the 
whole more blameable for what it neglects or postpones 



316 HAMILTON AND TOGQUEVILLE 

than for what it enacts. The censure is more true of the 
States, especially the newer Western States. 

5. The House of Representatives has doubtless sought 
to extend its sway at the expense of other depart- 
ments. Whether it has succeeded is a question on which 
competent observers in America itself differ; but the 
fact of their differing proves that the encroachments 
have not been considerable. Whenever the President is 
weak or unpopular, Congress seems to be gaining on 
the Executive Chief. When the latter is or seems 
strong, he can keep the Legislature at bay. 

6. In the struggle which never quite ceases, though 
it is often scarcely noticed, between the States and the 
Federal Government, the States have on the whole lost 
ground. Nor are the larger States practically more 
formidable than the small ones. The largest is small 
compared with the immense Union. No State would 
now venture to brave the Federal Judiciary as Georgia 
did, and for-a time did successfully (1832), in one of the 
painful cases regarding the Cherokee Indians. 

7. The so-called Tyranny of the Majority, a subject 
too large to be fully examined here 1 , has not hitherto 
proved a serious evil in America. This, however, is due 
rather to the character and habits of the people and their 
institutions generally than to the mere extent and popu- 
lation of the Union, on which the Federalist writers relied. 

8. There has been some unwise Congressional legis- 
lation, especially in currency matters, and, of course, 
much more of unwise State legislation. But property 
is secure, and the sense of civic duty seems, on the whole, 
to be improving. 

It will appear from this examination, and from the 
fact (noted a few pages back) that some remarkable de- 
velopments which political life has taken never crossed 
the minds of the authors of The Federalist, that these 
wisest men of their time did not foresee what strike us 

1 The subject is discussed in the author's A merican Commonwealth, chaps. 
lxxxiv and lxxxv. 



HAMILTON AND TOCQUEVILLE 



317 



to-day as the specially characteristic virtues and faults of 
American democracy. Neither the spoils system nor 
the system of party nominations by wire-pullers crossed 
their minds. They did not foresee the inordinate multi- 
plication of elections, nor the evils of confining eligibility 
for a seat in the legislature to a person resident in the 
electing district, nor the disposition to ' play down ' to 
the masses by seductive proposals. That the power 
which money might come to exert lay quite out of their 
view is not to be wondered at, for no large fortunes then 
existed. No student of history will deem that these 
omissions detract from their greatness, for history 
teaches nothing more plainly than the vanity of predic- 
tions in the realm of what we call the moral and political 
sciences, in religion, in ethics, in sociology, in govern- 
ment and politics. Deep thinkers help us when they un- 
fold those permanent truths of human nature which 
come everywhere into play. Historians help us when, 
by interpreting the past, they demonstrate what are the 
tendencies that have gone to create the present. Ob- 
servers keen enough to interpret the underlying pheno- 
mena .of their own time may help us by showing which 
of the tendencies now at work are likely to become rul- 
ing factors in the near future. But beyond the near 
future — that is to say, beyond the lifetime of the genera- 
tion which already holds power — no true philosopher 
will venture. He may indulge his fancy in picturing the 
details of the remoter landscape ; but he knows that it 
is a region fit for fancy, not for science. In the works 
of great thinkers there are to be found some happy 
guesses about times to come ; but these are few indeed, 
compared with the prophecies whose worthlessness was 
so soon revealed that men forgot they had ever been 
made, or the dreams which, like those of Dante, idealized 
an impossible future from an irrevocable past. 

As regards the views of Hamilton and Madison, who, 
be it remembered, do not present themselves as pro- 
phets, but as the censors of present evils which they 



818 HAMILTON AND TOCQUEVILLE 

are seeking to remedy, it may be added that the Consti- 
tution which they framed and carried checked some of 
these very evils (e.g. the unjust law-making and reckless 
currency experiments of the State Legislatures) ; and 
that it was obviously impossible till the Federal govern- 
ment had begun to work to say how the existing forces 
could adapt themselves to it. Hamilton remarks in one 
of his letters that he holds with Montesquieu that a 
nation's form of government ought to be fitted to it as 
a suit of clothes is fitted to its wearer 1 . He would 
doubtless have added that one cannot make sure of the 
fit until the suit has been tried on. 

We must remember, moreover, that the causes which 
have affected the political growth of America are largely 
causes which were in 1788 altogether beyond human 
ken. The cotton gin, Napoleon's willingness to sell 
Louisiana, steam communications by water and land, 
Irish and German immigration, have swayed the course 
of that history; but even the first of these factors had 
not risen over the horizon in that year, and the last did 
not become potent till halfway through the nineteenth 
century 2 . 

What the sages of the Convention do show us are 
certain tendencies they discern in their contemporaries, 
viz. : — 

Recklessness and unwisdom in the masses, producing 
bad laws. 

Unwillingness to submit to or support a strong 
government. 

Abuse by the majority of its legal power over the 
minority. 

Indifference to national as compared with local and 
sectional interests, and consequent preference of State 
loyalty to national loyalty. 

1 ' I hold with Montesquieu that a government must be fitted to a nation as much 
as a coat to the individual ; and consequently that what may be good at Philadel- 
phia may be bad at Paris and ridiculous at Petersburgh.' To Lafayette, Jan. 6, 1799. 

1 The first cargo of cotton was sent from America to Europe in 1791, and the 
cotton gin invented in 1793. 



HAMILTON AND TOCQUEVILLE 319 

That each of these tendencies then existed, and might 
have been expected to work for evil, admits of no doubt. 
But if we ask American history what it has to say about 
their subsequent course, the answer will be that the 
second and third tendencies have declined, and do not 
at present menace the public welfare, while the first, 
though never absent and always liable to marked recru- 
descence, as the annals of the several States prove, has 
done comparatively little harm in the sphere of national 
government. As to the fourth, which Hamilton seems 
to have chiefly feared, it ultimately took the form, not 
of a general centrifugal force, impelling each State to fly 
off from the system, but of a scheme for the separation 
of the Southern or slave-holding States into a separate 
Confederacy, and in this form it received, in 1865, a 
crushing and apparently final defeat 1 . 

IV. TOCQUEVILLE AND HIS BOOK. 

Fifty-one years after the recognition of the indepen- 
dence of the United States, sixty-seven years before the 
beginning of the twentieth century, Alexis de Tocque- 
ville published his Democracy in America, one of the few / 
treatises on the philosophy of politics which has risen to 
the rank of a classic. His book, therefore, stands rather 
further than halfway back between our own days and 
those first days of the Republic which we know from the 
writings of the Fathers, of Washington, Jefferson, 
Adams, Hamilton, Madison. It offers a means of mea- 
suring the changes that had passed on the country dur- 
ing the half-century from the birth of the Union to the 
visit of its most famous European critic, and again from 
the days of that critic to our own. 

It is a classic, and because it is a classic, one may 
venture to canvas it freely without the fear of seeming 

1 When we come to Tocqueville, we shall find him touching- but lightly on the 
two first of the above tendencies (partly, perhaps, because he attends too little to 
the State governments), but emphasizing the third and fearing from the fourth 
the dissolution of the Union. 



320 HAMILTON AND TOCQUEVILLE 

to detract from the fame of its author. The more one 
reads Tocqueville, the more admiration does one feel for 
the acuteness of his observation, for the delicacy of his 
analysis, for the elegant precision of his reasonings, 
for the limpid purity of his style ; above all, for his love 
of truth and the elevation of his character. He is not 
only urbane, but judicial ; not only noble, but edifying. 
There is perhaps no book of the generation to which he 
belonged which contains more solid wisdom in a more 
attractive dress. 

We have here, however, to regard the treatise, not 
as a model of art and a storehouse of ethical maxims, 
but as a picture and criticism of the government and 
people of the United States. And before using it as evi- 
dence of their condition seventy years ago, we must ap- 
praise the reliance to be placed upon it 1 . 

First let it be observed that not only are Tocqueville's 
descriptions of democracy as displayed in America no 
longer true in many points, but that in certain points 
they never were true. That is to say, some were true of 
America, but not of democracy in general, while others 
were true of democracy in general, but not true of Amer- 
ica. It is worth while to attempt to indicate the causes 
of such errors as may be discovered in his picture, be- 
cause they are errors which every one who approaches 
a similar task has to guard against. Tocqueville is not 
widely read in the United States, where the scientific, 
historical, and philosophical study of the institutions of 
the country, apart from the legal study of the Constitu- 
tion, is of comparatively recent growth. He is less read 
than formerly in England and even in France. But his 
views of the American government and people have so 
passed into the texture of our thoughts that we cannot 
shake off his influence, and, in order to profit by it, are 
bound to submit his conclusions and predictions to a 
searching though always respectful examination. 

1 Some interesting remarks upon Tocqueville's tour in America and upon his 
views of American affairs may be found in President Gilman's Introduction to a 
recent edition (1898) of the English translation of Tocqueville's book. 



HAMILTON AND TOCQVEVILLE 321 

The defects of the book are due to three causes. He 
had a strong and penetrating intellect, but it moved by 
preference in the a priori or deductive path, and his 
power of observation, quick and active as it was, did 
not lead but followed the march of his reasonings. It 
will be found, when his method is closely scrutinized, 
that the facts he cites are rather the illustrations than 
the sources of his conclusions. He had studied America 
carefully and thoroughly. But he wanted the necessary 
preparation for that study. His knowledge of England, 
while remarkable in a native of continental Europe, was 
not sufficient to show him how much in American insti- 
tutions is really English, and explainable only from Eng- 
lish sources. 

He wrote about America, and meant to describe it 
fully and faithfully. But his heart was in France, and 
the thought of France, never absent from him, uncon- 
sciously coloured every picture he drew. It made him 
think things abnormal which are merely un-French; it 
made him attach undue importance to phenomena which 
seemed to explain French events or supply a warning 
against French dangers. 

He reveals his method in the introduction to his book. 
He draws a fancy sketch of a democratic people, based 
on a few general principles, passes to the condition of 
France, and then proceeds to tell us that in America he 
went to seek the type of democracy — democracy pure 
and simple — in its normal shape. 

' J'avoue que dans l'Amerique, j'ai vu plus que l'Amer- 
ique ; j'y ai cherche une image de la democratic elle- 
meme, de ses penchants, de son caractere, de ses pre- 
juges, de ses passions.' 

Like Plato in the Republic, he begins by imagining 
that there exists somewhere a type or pattern of demo- 
cracy, and as the American Republic comes nearest to 
this pattern, he selects it for examination. He is aware, 
of course, that there must be in every country and peo- 
ple many features special to the country which reappear 



322 HAMILTON AND TOCQUEVILLE 

in its government, and repeatedly observes that this or 
that is peculiar to America, and must not be taken as 
necessarily or generally true of other democracies. But 
in practice h e underrate s the purely local and special fea- 
tures of America, and often, forgetting his own scientific 
cautions, treats it as a norm for democracy in general. 
Nor does he, after finding his norm, proceed simply to 
examine the facts and draw inferences from them. In 
many chapters he begins by laying down one or two 
large principles, he develops conclusions from them, and 
then he points out that the phenomena of America con- 
form to these conclusions. Instead of drawing the cha- 
racter of democracy from the aspects it presents in 
America, he arrives at its character by a sort of intuitive 
method, and uses those aspects only to point and enforce 
propositions he has already reached. It is not demo- 
cracy in America he describes, but his own theoretic 
view of democracy illustrated from America. He is ad- 
mirably honest, never concealing or consciously evading 
a fact which he perceives to tell against his theories. 
But being already prepossessed by certain abstract 
principles, facts do not fall on his mind like seeds on 
virgin soil. He is struck by those which accord with, he 
is apt to ignore those which diverge from, his preconcep- 
tions. Like all deductive reasoners, he is peculiarly ex- 
posed to the danger of pressing a principle too far, of 
seeking to explain a phenomenon by one principle only 
when it is perhaps the result of an accidental concur- 
rence of several minor causes. The scholasticism we ob- 
serve in him is due partly to this deductive habit, partly 
to his want of familiarity with the actualities of politics. 
An instance of it appears in his tendency to overestimate 
the value of constitutional powers and devices, and to 
forget how often they are modified, almost reversed, in 
practice by the habits of those who use them. Though 
no one has more judiciously warned us to look to the 
actual working of institutions and the ideas of the men 
who work them rather than to their letter, he has him- 



HAMILTON AND TOCQUEVILLE 323 

self failed to observe that the American Constitution 
tends to vary in working from its legal theory, and the 
name Legislature has prevented him, like so many other 
foreign observers, from seeing in the English Parlia- 
ment an executive as well as a law-making body. 

In saying that he did not know England, I fully admit 
that his knowledge of that country and its free govern- 
ment was far beyond the knowledge of most cultivated 
foreigners. He had studied its history and had gathered 
from his reading the sentiments of its aristocracy and 
of its literary men. But he did not know the ideas and 
habits of the English middle class, with whom the Ameri- 
cans of his time might better have been compared, and 
he was not familiar — as how could a stranger be? — 
with the details of English politics and the working of 
the English judicial system. Hence he has failed to 
grasp the substantial identity of the American people 
with the English. He perceives that there are many 
and close resemblances, and traces much that is Ameri- 
can to an English source. He has seen and described 
with perfect justness and clearness the mental habits of 
the English and American lawyer as contrasted with 
those of the French lawyer. But he has not grasped, as 
perhaps no one but an Englishman or an American can 
grasp, the truth that the American people of 1830 was 
a branch of the English people, modified in some direc- 
tions by the circumstances of its colonial life and its 
more popular government, but in essentials the same. 
Hence much that was merely English appeared to 
Tocqueville to be American or democratic. The func- 
tions of the judges, for instance, in expounding the Con- 
stitution (whether of the Federation or of a State) and 
disregarding a statute which conflicts therewith, the re- 
sponsibility of an official to the ordinary courts of the 
land, the co-existence of laws of a higher and lower 
degree of authority, seem to him to be novel and brilliant 
inventions instead of mere instances of general doctrines 
of English law, adapted to the circumstances of a colony 



324 HAMILTON AND TOCQVEVILLE 

dependent on a home Government, or of a State partially 
subordinated to a Federal Government. The absence 
of what the French call ' Administration,' and the dis- 
position to leave people to themselves, which strike him, 
would not surprise an Englishman accustomed to the like 
freedom. Much that he remarks in the mental habits of 
the ordinary American, his latent conservatism for in- 
stance, his indifference to amusement as compared with 
material comfort, his commercial eagerness and ten- 
dency to take a commercial view of all things, might 
have been just as well remarked of the ordinary middle- 
class Englishman, and had nothing to do with a demo- 
cratic government. Other features, which he ascribes 
to this last-named cause, such as habits of easy social 
intercourse, the disposition to prize certain particular 
virtues, the readiness to give mutual help, are equally 
attributable to the conditions of life that existed among 
settlers in a wild country where few persons were raised 
by birth or wealth above their fellows, and every one had 
need of the aid of others — conditions whose results re- 
mained in the temper of the people even when the com- 
munity had passed into another phase, a phase in which 
inequalities of wealth were already marked, and tempta- 
tions had begun to appear which did not beset the Puri- 
tans of the seventeenth century. 

It is no reproach to this great author that France 
formed to him the background of every picture whose 
foreground was the New World. He tells us frankly in 
the Introduction that the phenomena of social equality, 
as they existed in France, and the political consequences 
to be expected from them, filled his mind when he ex- 
amined the institutions of America; he hoped to find 
there lessons by which France might profit : ' J'ai voulu 
y trouver des enseignements dont nous puissions pro- 
fiter.' But with this purpose before him, he could hardly 
avoid laying too much stress on points which seemed 
to have instruction for his own countrymen, and from 
fancying those things to be abnormal, or at least spe- 



HAMILTON AND TOCQUETILLE 325 

daily noteworthy, which stood contrasted with the cir- 
cumstances of France. Tocqueville is, among eminent 
French writers, one of the least prone to assume the 
ways and ideas of his own country to be the rule, and 
those of another country the exception ; yet even in him 
the tendency lurks. There is more than a trace of it in 
his surprise at the American habit of using without abus- 
ing political associations, and at the disposition of 
Legislatures to try experiments in legislation, a disposi- 
tion which struck him chiefly by its contrast with the im- 
mutability which the Code of the First Empire seemed 
to have stamped upon the private law of France. 

His constant reference to France goes deeper than 
the method of the book. It determines his scope and 
aim. The Democracy in America is not so much a politi- 
cal study as a work of edification. It is a warning to 
France of the need to adjust her political institutions to 
her social condition, and above all to improve the tone 
of her politics, to create a moral and religious basis for 
her national life, to erect a new fabric of social doctrine, 
in the place of that which, already crumbling, the Revo- 
lution had overthrown. We must not, therefore, expect 
to find in him a complete description and criticism, such 
as a German would have given, of the government of 
America in all its details and aspects. To note this is 
not to complain of the book. What Tocqueville has pro- 
duced is more artistic, and possibly more impressive ; 
than such a description would have been, as a landscape 1 
gives a juster notion of scenery than a map. His book ' 
is permanently valuable, because its reflections and ex- 
hortations are applicable not merely to the Frenchmen 
of sixty-five years ago, but to mankind generally, since 
they touch upon failings and dangers permanently in- 
herent in political society. Let it only be remembered 
that, in spite of its scientific form, it is really a work of 
art quite as much as a work of science, and a work suf- 
fused with strong, though carefully repressed, emotion. 

The best illustration I can give of these tendencies in 



326 HAMILTON AND TOCQUEYILLE 

our author will be found in a comparison of the first part 
of the book, published in 1834, and now included in the 
first and second volumes of recent editions, with the 
second part published in 1840, and now forming the third 
volume. In the first part the author keeps near his facts. 
Even when he has set out on the a priori road he pre- 
sently brings his theory into relation with American 
phenomena: they give substance to, and (so to speak) 
steady the theory, while the theory connects and illu- 
mines them. But in the second part (third volume) he 
soars far from the ground, and is often lost in the clouds 
of his own sombre meditation. When this part was writ- 
ten, the direct impressions of his transatlantic visit had 
begun to fade from his mind. With all his finesse and 
fertility, he had neither sufficient profundity of thought, 
nor a sufficient ample store of facts gathered from his- 
tory at large, to enable him to give body and substance to 
his reflections on the obscure problems wherewith he at- 
tempts to deal 1 . Hence, this part of the book is not so 
much a study of American democracy as a series of 
ingenious and finespun abstract speculations on the fea- 
tures of equality and its results on modern society and 
thought, speculations which, though they have been 
singled out for admiration by some high judges, such as 
Ampere and Laboulaye, will appear to most readers 
overfanciful, overconfident in their effort to construct a 
general theory applicable to the infinitely diversified 
facts of human society, and occasionally monotonous in 
their repetition of distinctions without differences and 
generalities too vague, perhaps too hollow, for practical 
use. 

How far do these defects of Tocqueville's work affect 
its value for our present purpose, that of discovering 
from i.t what was the condition, political, social, intel- 
lectual, of the United States in 1833, and what the forces 

1 Sainte-Beuve remarks of him, ' Tl a commence" a penser avant d'avoir rien 
appris : ce qui fait qu'il a quelquefois pense" creux.' Thiers once said, in the Cham- 
ber, ' Quand je considere intuitivement, commedirait M. de Tocqueville.' 



HAMILTON AND TOCQUEVILLE 327 

that were then at work in determining the march of the 
nation and the development of its institutions ? 

It is but slightly that they impair its worth as a record 
of facts. Tocqueville is so careful and so unprejudiced 
an observer that I doubt if there be a single remark of 
his which can be dismissed as either erroneous or super- 
ficial. There is always some basis for every statement he 
makes. But the basis is occasionally too small for the 
superstructure of inference, speculation, and prediction 
which he rears upon it. To borrow an illustration from 
chemistry, his analysis is always right so far as it is quali- 
tative, sometimes wrong where it attempts to be quanti- 
tative. The fact is there, but it is perhaps a smaller fact 
than he thinks, or a transient fact, or a fact whose im- 
portance is, or shortly will be, diminished by other facts 
which he has not adequately recognized. 

When we pass from description to argument he is a 
less safe guide. By the light of subsequent experience 
we can perceive that he mistook transitory for perma- 
nent causes. Many of the phenomena which he ascribes 
to democracy were due only to the fact that large for- 
tunes had not yet grown up in America, others to the 
absence, in most parts of the country, of that higher 
education and culture which comes with wealth, leisure, 
and the settlement of society. I have already observed 
that he sometimes supposes features of American poli- 
tics to be novel and democratic which are really old and 
English ; that he does not allow sufficiently for the im- 
print which colonial life had left on the habits and ideas 
of the people, an imprint which, though it tends to wear 
off with time, is yet also modified into something which, 
while you may call it democratic, remains different from 
the democracy of an old European country, and is not 
an index to the character of democracy in general. 

It need hardly be said that the worth of a book like 
his is not to be measured by the number of flaws which 
can be discovered under the critic's microscope. Even 
a sovereign genius like Aristotle cannot be expected to 



328 HAMILTON AND TOCQUEVILLE 

foresee which of the influences he discerns will retain 
their potency : it is enough if his view is more piercing 
and more comprehensive than that of his greatest con- 
temporaries, if his record shows the high-water mark of 
the learning and philosophy of the time. Had history fal- 
sified far more of Tocqueville's predictions than she has 
done, his work would still remain eminently suggestive 
and stimulating. And it is edificatory not merely be- 
cause it contains precepts instinct with the loftiest mo- 
rality. It is a model of that spirit of fairness and justice, 
that love of pure truth which is conspicuously necessary, 
and not less conspicuously difficult, in the discussion, 
even the abstract discussion, of the problems of political 
philosophy. Few books inspire a higher respect for 
their writer. 

V. Tocqueville's View of the United States. 

Before we examine the picture of the social and politi- 
cal phenomena of America which Tocqueville has drawn, 
let us see what were the chief changes that had passed 
on the territory of the Union, on its material resources, 
on the habits and ideas of the people, during the 
forty-six years that elapsed from the publication of the 
Federalist to that of the Democratic en Amerique. 

The territory of the United States had been extended 
to include the whole valley of the Mississippi, while to 
the north-west it stretched across the Rocky Mountains 
as far as the Pacific. All beyond the Missouri was still 
wilderness, much of it wholly unexplored, but to the 
east of the Mississippi there were now twenty-four 
States with an area of 2,059,043 square miles and a popu- 
lation of fourteen millions. The new Western States, 
though rapidly increasing, were still so raw as to exer- 
cise comparatively little influence on the balance of na- 
tional power, which vibrated between the free Northern 
and the Southern Slave States. Slavery was not an 
immediately menacing question, for the first wound it 



HAMILTON AND TOCQUEVILLE 329 

fnade had been skinned over, so to speak, by the Mis- 
souri Compromise of 1820; but it was evidently preg- 
nant with future trouble, for the number of slaves was 
rapidly increasing, and the slaveholders were already 
resolved to retain their political influence by the creation 
of new slave States. The great Federalist party had 
vanished, and the Republican-Democratic party, which 
had triumphed over it, had just been split into several 
bitterly hostile factions. Questions of foreign policy 
were no longer urgent, for Europe had ceased to menace 
America, who had now no neighbours on her own conti- 
nent except the British Crown on the north and the 
Mexican Republic on the south and west. The protec- 
tive tariff and the existence of the United States Bank 
were the questions most agitated, but the main divid- 
ing party lines were still those which connected them- 
selves with the stricter or looser interpretation of the 
Federal Constitution — that is to say, they were ques- 
tions as to the extent of Federal power on the one hand, 
as to the rights of the States on the other. New Eng- 
land was still Puritan and commercial, with a bias 
towards protective tariffs, the South still agricultural, and 
in favour of free trade. The rule of the masses had made 
its greatest strides in New York, the first, among the 
older States, which introduced the new methods of party 
organization and which thoroughly democratized her 
Constitution 1 . Everywhere property qualifications for 
office or the electoral franchise were being abolished, 
and even the judges formerly nominated by the State 
Governor or chosen by the State Legislature were be- 
ginning to be elected by manhood suffrage and for terms 
of years. In fact a great democratic wave was passing 
over the country, sweeping away the old landmarks, de- 
stroying the respect for authority, casting office and 
power more and more into the hands of the humbler 
classes, and causing the withdrawal from public life of 
men of education and refinement. State feeling was still 

1 The process of democratization was completed by the Constitution of 1846, 



330 HAMILTON AND TOCQUEYILLE 

strong, especially in the South, and perhaps stronger 
than national feeling, but the activity of commerce and 
the westward movement of population were breaking 
down the old local exclusiveness, and those who saw 
steamboats plying on the Hudson and heard that locomo- 
tive engines were beginning to be run in England, might 
have foreseen that the creation of more easy, cheap, and 
rapid communications would bind the sections of the 
country together with a new and irresistible power. The 
time was one of great commercial activity and great ap- 
parent prosperity; but large fortunes were still few, 
while in the general pursuit of material objects science, 
learning, and literature had fallen into the background. 
Emerson was still a young Unitarian minister, known 
only to the circle of his own friends. Channing was just 
rising into note; Longfellow and Hawthorne, Prescott 
and Ticknor had not begun to write. Washington Irving 
was one of the few authors whose names had reached 
Europe. How disagreeable the manners of ordinary 
people (for one must of course except the cultivated 
circles of Boston and Philadelphia) seemed to the Euro- 
pean visitor may be gathered from the diaries of Richard 
Cobden and Sir Charles Lyell, who travelled in America 
a year or two after Tocqueville. There was a good deal 
of ability among the ruling generation of statesmen — 
the generation of 1787 was just dying out with Madison 
— but only three names can be said to have survived in 
the world's memory, the names of three party leaders 
who were also great orators, Clay, Calhoun, and 
Webster 1 . 

In those days America was a month from Europe and 
comparatively little affected by Europe. Her people 
walked in a vain conceit of their own greatness and 
freedom, and scorned instruction from the effete mo- 
narchies of the Old World, which in turn repaid them 

1 To none of whom, oddly enough, does Tocqueville refer. He is singularly- 
sparing in his references to individuals, mentioning no one except President Jack- 
son for blame and Livingston (author of the Louisiana Code and Secretary of 
State, 1831-3) for praise. 



HAMILTON AND TOCQVEVILLE 331 

with contemptuous indifference. Neither continent had 
realized how closely its fortunes were to be inter- 
woven with those of the other by trade and the move- 
ments of population. No wheat, no cattle were sent 
across the Atlantic, nor had the flow of immigration 
from Ireland, much less from Central Europe, as yet 
begun. 

The United States of 1834 had made enormous ad- 
vances in material prosperity. Already a great nation, 
it could become a great power as soon as it cared to 
spend money on fleets and armies. The Federal govern- 
ment had stood the test of time and of not a few storms. 
Its component parts knew their respective functions, 
and worked with less friction than might have been ex- 
pected. The sense of national unity, powerfully stimu- 
lated by the war of 1812, was still growing. But the 
level of public life had not risen. It was now rather 
below than above that of average private society. Even 
in the realm of morality there were strange contrasts. 
A puritan strictness in some departments of conduct and 
a universal recognition of the sanctions of religion co- 
existed in the North with some commercial laxity, while 
the semi-civilized South, not less religious and valuing 
itself on its high code of honour, was disgraced by the 
tolerance accorded to duels and acts of murderous vio- 
lence, not to speak of the darker evils which slavery 
brought in its train. As respects the government of 
States and cities, democratic doctrines had triumphed 
all along the line. The masses of the people had now 
realized their power, and entered into the full fruition of 
it. They had unlimited confidence in their wisdom and 
virtue, and had not yet discovered- the dangers incidental 
to the rule of numbers. The wise elders, or the philo- 
sophic minds who looked on with distrust, were either 
afraid to speak out, or deemed it hopeless to try to stem 
the flowing tide. They stood aside (as Plato says) under 
the wall out of the storm. The party organizations had 
just begun to spread their tough yet flexible network 



332 HAMILTON AND T0CQUE7ILLE 

over the whole country; and the class of professional 
politicians, at once the creator and the creature of such 
organizations, was already formed. The offices had, three 
years before, been proclaimed to belong to the victors 
as spoils of war, but few saw to what consequences this 
doctrine was to lead. I will not say that it was a period 
of transition, for that is true of every period in America, 
so fast do events move even in the quietest times ; but 
it was a period when that which had been democratic 
theory was passing swiftly into democratic practice, 
when the seeds sown long ago by Jefferson had ripened 
into a waving crop, when the forces which in every so- 
ciety react against extreme democracy were unusually 
weak, some not yet developed, some afraid to resist the 
stream. 



VI. Tocqueville's Impressions and Prophecies. 

Let us see what were the impressions which the Amer- 
ica of 1832 made on the mind of Tocqueville. I do not 
pretend to summarize his account, which every student 
ought to read for himself, but shall be content with pre- 
senting the more salient points that ought to be noted 
in comparing 1832 with 1788 on the one hand, and 1900 
on the other. 

He is struck by the thoroughness with which the prin- 
ciple of the sovereignty of the people is carried out. 
Seventy years ago this principle was far from having 
obtained its present ascendency in Western Europe. 
In America, however, it was not merely recognized in 
theory, but consistently applied through every branch 
of local, State, and National government. 

He is impressed by the greater importance to ordi- 
nary citizens of State government than of Federal gov- 
ernment, and their warmer attachment to the former 
than to the latter. The Federal government seems com- 
paratively weak, and in case of a conflict between the 



HAMILTON AND TOCQUEVILLE 333 

two powers, the loyalty of the people would be given 
rather to the State x . 

He finds the basis of all American government in the 
'commune,' i.e. in local government, the ultimate unit 
of which is in New England the township, in the South- 
ern and Middle States the county. It is here that the 
bulk of the work of administration is done, here that 
the citizens learn how to use and love freedom, here that 
the wonderful activity they display in public affairs finds 
its chief sphere and its constant stimulus. 

The absence of what a European calls ' the administra- 
tion ' is remarkable. Public work is divided up between 
a multitude of petty and unrelated local officials : there 
is no ' hierarchy,' no organized civil service with a sub- 
ordination of ranks. The means employed to keep offi- 
cials to their work and punish offences are two — fre- 
quent popular election and the power of invoking the 
ordinary courts of justice to obtain damages for negli- 
gence or unwarranted action. But along with the ex- 
treme 'administrative decentralization ' there exists a no 
less extreme ' governmental centralization,' that is to 
say, all the powers of government are collected into one 
hand, that of the people, the majority of the voters. This 
majority is omnipotent; and thus authority is strong, 
capable of great efforts, capable also of tyranny. Hence 
the value of local self-government, which prevents the 
abuse of power by a central authority : hence the neces- 
sity for this administrative decentralization, which atones 
for its want of skill in details by the wholesome influence 
it exerts on the character of the people. 

The judges enjoy along with the dignity of their Euro- 
pean brethren the singular but most salutary power of 
' declaring laws to be unconstitutional,' and thus they 
serve to restrain excesses of legislative as well as of ex- 
ecutive authority. 

The President appears to our author to be a com- 

1 His insistence on this point makes it all the more strange that he does not give 
any description of a State as a commonwealth, nor characterize the general fea- 
tures of its government. 



334 HAMILTON AND TOCQUEVILLE 

paratively weak official. No person, no group, no party, 
has much to hope from the success of a particular can- 
didate at a Presidential election, because he has not 
much to give away[!]. The elective system unduly 
weakens executive authority, because a President who 
approaches the end of his four years' term feels himself 
feeble, and dares not take any bold step: while the com- 
ing in of a new President may cause a complete change 
of policy. His re-eligibility further weakens and abases 
him, for he must purchase re-election by intrigue and an 
unworthy pandering to the desires of his party. It in- 
tensifies the characteristic fault of democratic govern- 
ment, the predominance of a temporary majority. 

The Federal Supreme Court is the noblest product of 
the wisdom of those who framed the Federal Constitu- 
tion. It keeps the whole machine in working order, pro- 
tecting the Union against the States, and each part of 
the Federal government against the aggressions of the 
others. The strength of the Federation, naturally a 
weak form of government, lies in the direct authority 
which the Federal courts have over the individual citi- 
zen : while the action of these Courts, even against a 
State, gives less offence than might be expected because 
they do not directly attack its statutes, but merely, at the 
instance of an individual plaintiff or defendant, secure to 
him rights which those statutes may have incidentally 
infringed. 

The Federal Constitution is much superior to the 
State Constitutions ; the Federal Legislature, Executive 
and Judiciary, are all of them more independent of the 
popular majority, and freer in their action than the cor- 
responding authorities in the several States. Similarly 
the Federal government is better than those of the 
States, wiser, more skilful, more consistent, more firm. 

The day of great parties is past : there is now a feverish 
agitation of small parties and a constant effort to create 
parties, to grasp at some principle or watchword under 
which men may group themselves, probably for selfish 



HAMILTON AND TOCQUEVILLE 335 

ends. Self-interest is at the bottom of the parties, yet 
aristocratic or democratic sentiment attaches itself to 
each of them, that is to say, when a practical issue arises, 
the old antithesis of faith in the masses and distrust of 
the masses reappears in the view which men and parties 
take of it. The rich mix little in politics. Secretly dis- 
gusted at the predominance of the crowd, they treat 
their shoemaker as an equal when they meet him on the 
street, but in their luxurious homes lament the vulgarity 
of public life and predict a bad end for democracy. 

Next to the people, the greatest power in the country 
is the press : yet it is less powerful than in France, be- 
cause the number of journals is so prodigious, because 
they are so poorly written, because there is no centre 
like Paris. Advertisements and general news occupy 
far more of their space than does political argument, and 
in the midst of a din of opposing voices the ordinary 
citizen retains his dull fixity of opinion, the prejudices of 
his sect or party. 

A European is surprised, not only at the number of 
voluntary associations aiming at public objects, but at 
the tolerance which the law accords to them. They are 
immensely active and powerful, and do not threaten 
public security as they would in France, because they 
admit themselves, by the very fact of their existence, to 
represent a minority of voters, and seek to prevail by 
force of argument and not of arms. 

Universal suffrage, while it gives admirable stability 
to the government, does not, as people in Europe expect 
that it will, bring the best men to the top. On the con- 
trary, the governors are inferior to the governed 1 . The 
best men do not seek either office or a seat in the House 
of Representatives, and the people, without positively 
hating the ' upper classes,' do not like them ; and care- 

1 This is a common remark of visitors to America, but it arises from their mis- 
taking the people they see in society for 'the governed' in general. They go 
carrying introductions to rich or educated people : if they mixed with the masses 
they would form a different notion of ' the governed,' as Tocqueville rather oddly 
calls the ordinary citizens. 



336 HAMILTON AND TOCQUEVILLE 

fully keep them out of power. ' II ne craint point les 
grands talents, mais il les goute peu.' 

The striking inferiority of the House to the Senate 
is due to the fact that the latter is a product of double 
election, and it is to double election that democracies 
must come if they will avoid the evils inseparable from 
placing political functions in the hands of every class of 
the people 1 . 

American magistrates are allowed a wider arbitrary 
discretion than is common in Europe, because they are 
more constantly watched by the sovereign people, and 
are more absolutely at their mercy 2 . 

Every office is, in America, a salaried office; nor can 
anything be more conformable to the spirit of a demo- 
cracy. The minor offices are, relatively to Europe, well 
paid, the higher ones ill paid. Nobody wears any dress 
or displays any insignia of office 3 . 

Administration has both an unstable and an unscien- 
tific character. Few records are kept of the acts of 
departments : little information is accumulated : even 
original documents are neglected. Tocqueville was 
sometimes given such documents in answer to his 
queries, and told that he might keep them. The con- 
duct of public business is a hand to mouth, rule of thumb 
sort of affair 4 . 

Not less instability reigns in the field of legislation. 
Laws are being constantly changed; nothing remains 
fixed or certain 5 . 

1 It is surprising that Tocqueville should have supposed this to be the cause of 
the excellence he ascribes to the Senate, considering that the more obvious, as well 
as the true, explanation is to be found in the fact that the wider powers and longer 
term of the Senate made the ablest men seek entrance to it. 

2 The only instance given of this is in the discretion allowed to the officers of the 
New England townships, whose functions are, however, unimportant. The state- 
ment cannot have been generally true. 

3 This remained true till very recent years as regards public officials, save and 
except the Judges of the Supreme Court when sitting at Washington. But lately 
the Supreme Court Judges of some States have begun to wear gowns. 

4 This has ceased to be true in Federal administration, and in that of the more 
advanced States. 

6 Tocqueville does not say whether he intends this remark to apply to State legis- 
lation only or to Federal legislation also. He quotes dicta of Hamilton, Madison, 
and Jefferson to the same effect, but these testimonies, or most of them, refer to a 



HAMILTON AND TOCQUEYILLE 337 

It is a mistake to suppose that democratic govern- 
ments are specially economical. They are parsimonious 
in salaries, at least to the higher officials, but they spend 
freely on objects beneficial to the mass of the people, 
such as education, while the want of financial skill in- 
volves a good deal of waste. You must not expect 
economy where those who pay the bulk of the taxes are 
a mere fraction of those who direct their expenditure. 
If ever America finds herself among dangers, her taxa- 
tion will be as heavy as that of European monarchies. 

There is little bribery of voters, but many charges 
against the integrity of politicians. Now the corruption 
of the ' governors ' is worse than that of the ' governed,' 
for it lowers the tone of public morals by presenting 
the spectacle of prosperous turpitude. 

The American democracy is self-indulgent and self- 
complacent, slow to recognize, still more slow to correct, 
its faults. But it has the unequalled good fortune of 
being able to commit reparable errors (la faculte de faire 
dcs f mites rcparables). It can sin with impunity. 

It is eminently ill-fitted to conduct foreign policy. 
Fortunately it has none. 

The benefits which American society derives from its 
democratic government are summed up as follows : — 

As the majority make the laws, their general ten- 
dency, in spite of many errors in detail, is to benefit the 
majority, because though the means may sometimes be 
ill chosen, the end is always the same. Hence the coun- 
try prospers. 

Every one is interested in the welfare of the country, \ 
because his own welfare is bound up with it. This 
patriotism may be only an enlarged egotism, but it is 
powerful nevertheless, for it is a permanent sentiment, 
independent of transient enthusiasms. Its character ap- 

time anterior to the creation of the Federal Constitution. If it is true that State f 
laws were being constantly changed in 1832, this can have been true only of ad- 
ministrative statutes, not of private law generally. One is tempted to believe that » 
Tocqueville was unconsciously comparing America with France, where the Code 
has arrested legislation to an extent surprising to an English observer. 
22 



338 HAMILTON AND TOGQUEVILLE 

pears in the childish intolerance of criticism which the 
people display. They will not permit you to find fault 
with any one of their institutions or habits, not even if 
you praise all the rest 1 . 

There is a profound respect for every political right, 
and therefore for every magistrate, and for the authority 
of the law, which is the work of the people themselves. 
If there be exceptions to this respect, they are to be 
found among the rich, who fear that the law may be 
made or used to their detriment. 

The infinite and incessant activity of public life, the 
responsibilities it casts on the citizen, the sense of his 
importance which it gives him, have stimulated his whole 
nature, and made him enterprising in all private affairs 
also. Hence, in great measure, the industrial prosperity 
of the country. Democracy effects more for the material 
progress of a nation than in the way of rendering it great 
in the arts, or in poetry, or in manners, or in elevation 
of character, or in the capacity for acting on other na- 
tions and leaving a great name in history. 

We now come to the darker side of the picture. In 
democracies, the majority is omnipotent, and in Amer- 
ica the evils hence flowing are aggravated by the short- 
ness of the term for which a legislature is chosen, by the 
weakness of the Executive, by the incipient disposition 
to choose even the judges by popular vote, by the notion 
universally accepted that the majority must be right. 
The majority in a legislature being unchecked, laws are 
hastily made and altered, administration has no perma- 
nence, officials are allowed a dangerously wide range 
of arbitrary authority. There is no escape from the 
tyranny of the majority. It dominates even thought, 
forbidding, not indeed by law, but through social penal- 
ties no less effective than legal ones, the expression of 
any opinion displeasing to the ordinary citizen. In the- 

1 Every one knows how frequently European visitors used to comment upon 
this American trait. It is now much less noticeable than formerly. I can even say 
from experience that it has sensibly diminished since 1870. 



HAMILTON AND TOCQUEVILLE 339 

ology, even in philosophy, one must beware of any di- 
vergence from orthodoxy. No one dare tell an unwel- 
come truth to the people, for it will receive nothing but 
incense. Such repression sufficiently explains the ab- 
sence of great writers and of great characters in public 
life. It is not therefore of weakness that free govern- 
ment in America will ever perish, but through excess of 
strength, the majority driving the minority to despair 
and to arms. 

There are, however, influences which temper the des- 
potism of the majority. One is the existence of a 
strong system of local self-government, whereby nearly 
all administration is decentralized. Another is the power 
of the lawyers, a class everywhere disposed to maintain 
authority and to defend that which exists, and specially 
so disposed in England and America because the law 
which they study and practise is founded on precedents 
and despises abstract reason. A third exists in the jury, 
and particularly the jury in its action in civil causes, for 
it teaches the people not only the regular methods of 
law and justice, but respect for law and for the judges 
who administer it. 

Next we come to an enumeration of the causes which 
maintain republican government. They are, over and 
above the constitutional safeguards already discussed, 
the following: — 

The absence of neighbouring States, and the conse- 
quent absence of great wars, of financial crises 1 , of in- 
vasions or conquests. How dangerous to republics is 
the passion for military glory is shown by the two elec- 
tions of General Jackson to be President, a man of 
violent temper and limited capacity, recommended by 
nothing but the memory of his victory at New Orleans 
twenty years before 2 . 

1 This observation seems strange indeed to any one who remembers the com- 
mercial history of the United States since the great crisis of 1838. 

2 Jackson's popularity began with his military exploit : but his hold on the peo- 
ple was due to other causes also. His election coincided with the rise of the great 
democratic wave already referred to. 



340 HAMILTON AND TOOQVEVILLE 

The absence of a great capital. 

The material prosperity of the country, due to its im- 
mense extent and natural resources, which open a 
boundless field in which the desire of gain and the love 
of independence may gratify themselves and render the 
vices of man almost as useful to society as his virtues. 
The passions which really agitate America are commer- 
cial, not political. 

The influence of religion. American Protestantism is 
republican and democratic; American Catholicism no 
less so ; for Catholicism itself tends to an equality of con- 
ditions, since it treats all men alike. The Catholic clergy 
are as hearty republicans as any others. 

The indirect influence of religion on manners and mo- 
rality. Nowhere is marriage so much respected and the 
relations of the sexes so well ordered. The universal 
acceptance of Christianity, an acceptance which imposes 
silence even on the few sceptics who may be supposed 
to exist there as everywhere, steadies and restrains 
men's minds. ' No one ventures to proclaim that every- 
thing is permissible in the interests of society. Impious 
maxim, which seems to have been invented in an age of 
liberty in order to give legitimacy to all tyrants to come.' 
The Americans themselves cannot imagine liberty with- 
out Christianity. And the chief cause why religion is so 
powerful among them is because it is entirely separated 
from the State 1 . 

The intelligence of the people, and their education, 
but especially their practical experience in working their 
local politics. However, though everybody has some ed- 
ucation, letters and culture do not flourish. The Ameri- 
cans regard literature properly so called with disfavour : 
they are averse to general ideas. They have no great his- 
torian, not a single poet, legal commentators but no 
publicists, good artisans but very few inventors [ !] 

1 I do not profess to summarize in these few lines all that Tocqueville says of 
the character and influence of Christianity in the United States, for he devotes 
many pages to it, and they are among the wisest and most permanently true that 
he has written. 



HAMILTON AND TOCQUEVILLE 341 

Of all these causes, the most important are those 
which belong to the character and habits of the people. 
These are infinitely more important sources of well- 
being than the laws, as the laws are in turn more im- 
portant than the physical conditions 1 . 

Whether democracy will succeed in other parts of the 
world is a question which a study of America does not 
enable the observer confidently to answer. Her insti- 
tutions, however suitable to her position in a world of 
her own, could not be transferred bodily to Europe. 
But the peace and prosperity which the Union enjoys 
under its democratic government do raise a strong pre- 
sumption in favour of democracy even in Europe. For 
the passions and vices which attack free government 
are the same in America as in Europe, and as the legis- 
lator has overcome many of them there, combating envy 
by the idea of rights, and the presumptuous ignorance 
of the crowd by the practice of local government, he 
may overcome them here in Europe likewise. 

One may imagine institutions for a democracy other 
than those the Americans have adopted, and some of 
them better ones. Since it seems probable that the peo- 
ples of Europe will have to choose between democracy 
and despotism, they ought at least to try the former, and 
may be encouraged by the example of America. 

A concluding chapter is devoted to speculations on the 
future of the three races which inhabit the territories of 
the United States. I need not transcribe what he says of 
the unhappy Indian tribes. Their fate was then already 
certain : the process which he saw passing in Alabama 
and Michigan afterwards repeated itself in California 
and Oregon. 

The presence of the blacks is the greatest evil that 
threatens the United States. They increase, in the Gulf 
States, faster than do the whites. They cannot be kept 

1 Like most of his contemporaries, Tocqueville failed to appreciate the enormous 
influence of physical environment, which has, however, doubtless increased, so far 
as America is concerned, through the scientific discoveries made since the date of 
his journey. 



342 HAMILTON AND TOCQUEVILLE 

for ever in slavery, since the tendencies of the modern 
world run strongly the other way. They cannot be ab- 
sorbed into the white population, for the whites will not 
intermarry with them, not even in the North where they 
have been free for two generations. Once freed, they 
would be more dangerous than now, because they would 
not long submit to be debarred from political rights. A 
' terrible struggle would ensue. Hence the Southern 
Americans, even those who regret slavery, are forced to 
maintain it, and have enacted a harsh code which keeps 
the slave as near as possible to a beast of burden, for- 
bidding him to be taught and making it difficult for him 
to be manumitted. No one in America seems to see any 
solution. The North discusses the problem with noisy 
inquietude. The South maintains an ominous silence. 
Slavery is evidently economically mischievous, for the 
free States are far more prosperous : but the South holds 
to slavery as a necessity. 

As to the Federal Union, it shows many signs of weak- 
ness. The States have most of the important powers 
of government in their hands ; they have the attachment 
of the people ; they act with vigour and promptitude, 
while the Federal authority hesitates and argues. In 
every struggle that has heretofore arisen the Federal 
Government has given way, and it possesses neither the 
material force to coerce a rebellious State nor a clear 
legal right to retain a member wishing to dissolve the 
Federal tie. But although the Union has no national 
patriotism to support it (for the professions of such 
patriotism one hears in America are but lip-deep), it is 
maintained by certain interests — those material interests 
which each part of the country has in remaining politi- 
cally united with the rest. Against these one finds no 
strong interests making for material severance, but one 
does find diversities, not indeed of opinion — for opinions 
and ideas are wonderfully similar over the whole coun- 
try — but of character, particularly between Northern 
and Southern men, which increase the chances of discord. 



HAMILTON AND TOCQUEYILLE 343 

And in the rapid growth of the Union there lies a real 
source of danger. Its population doubles every twenty- 
two years. Before a century has passed its territory will 
be covered by more than a hundred millions of people 
and divided into forty States 1 . Now all partnerships 
are more difficult to keep together the more the number 
of partners increases 2 . Even admitting, therefore, that 
this hundred millions of people have similar interests 
and are benefited by remaining united, still the mere 
fact that they will then form forty nations, distinct and 
unequally powerful, will make the maintenance of the 
Federal Government only a happy accident. ' I cannot 
believe in the duration of a government whose task is to 
hold together forty different peoples spread over a sur- 
face equal to the half of Europe, to avoid rivalries, ambi- 
tions, and struggles among them, and to unite the action 
of their independent wills for the accomplishment of the 
same plans 3 .' 

The greatest danger, however, which the Union incurs 
as it grows is the transference of forces which goes on 
within its own body. The Northern States increase 
more rapidly than the Southern, those of the Mississippi 
Valley more rapidly still. Washington, which when 
founded was in the centre of the Union, is now at one 
end of it. The disproportionate growth of some States 
menaces the independence of others. Hence the South 
has become suspicious, jealous, irritable. It fancies itself 
oppressed because outstripped in the race of prosperity 
and no longer dominant. It threatens to retire from a 
partnership whose charges it bears, but whose profits it 
does not share 4 . 

Besides the danger that some States may withdraw 

1 There are now forty-five, with a population of nearly eighty millions. 

2 No proof is given of this proposition, which is by no means self-evident, and 
which has indeed all the air of a premiss laid down by a schoolman of the thir- 
teenth century. 

3 He has, however, nowhere attempted to prove that the States deserve to be 
called ' nations ' or l peoples.' 

4 The protective tariff was felt as a grievance by the South, being imposed in the 
interest of the Northern and Middle States. No doubt, the North got more pecu- 
niary gain out of the Union than the South did. 



344 HAMILTON AND TOCQUEVILLE 

from the Union (in which case there would probably be 
formed several federations, for it is highly unlikely that 
the original condition of State isolation would reappear), 
there is the danger that the central Federal authority 
may continue to decline till it has become no less feeble 
than was the old Confederation. Although Americans 
fear, or pretend to fear, the growth of centralization and 
the accumulation of powers in the hands of the Federal 
Government, there can be little doubt that the central au- 
thority has been growing steadily weaker, and is less and 
less able to face the resistance of a refractory State. The 
concessions of public territory made to the States, the 
hostility to the United States Bank, the (virtual) success 
of South Carolina in the Nullification struggle, are all 
proofs of this truth. General Jackson, now (1832) Presi- 
dent, is at this moment strong, but only because he flat- 
ters the majority and lends himself to its passions. His 
personal power may increase, but that of the President 
declines. ' Unless I am strangely mistaken, the Federal 
Government of the United States tends to become daily 
weaker; it draws back from one kind of business after 
another, it more and more restricts the sphere of its 
action. Naturally feeble, it abandons even the appear- 
ance of force. On the other side, I think I perceive that 
in the United States the sentiment of independence be- 
comes more and more lively in the States, and the love of 
provincial government more and more pronounced. 
People wish to keep the Union, but to keep it reduced 
to a shadow : they would like to have it strong for some 
purposes and weak for the rest — strong in war and al- 
most non-existent in peace — forgetting that such alter- 
nations of strength and weakness are impossible.' 

Nevertheless the time when the Federal power will 
be extinguished is still distant, for the continuance of 
the Union is desired, and when the weakness of the Gov- 
ernment is seen to threaten the life of the Union, there 
may be a reaction in its favour. 

Whatever may be the future of the Federation, that 



HAMILTON AND TOCQUEVILLE 345 

of republicanism is well assured. It is deeply rooted 
not only in the laws, but in the habits, the ideas, the 
sentiments, even the religion of the people. It is indeed 
just possible that the extreme instability of legislation 
and administration may some day disgust the Americans 
with their present government, and in that case they will 
pass rapidly from republicanism to despotism, not stop- 
ping by the way in the stage of limited monarchy. An 
aristocracy, however, such as that of the old countries 
of Europe, can never grow up. Democratic equality 
will survive, whatever be the form which government 
may take. 

This brief summary, which conveys no impression of 
the elegance and refinement of Tocqueville's reasonings, 
need not be pursued to include his remarks on the com- 
mercial and maritime greatness of the United States, 
nor his speculations on the future of the Anglo-Ameri- 
can race. Still less shall I enter on the second part of 
the book, for (as has been observed already) it deals 
with the ideas of democracy and equality in a very ab- 
stract and sometimes unfruitful way, and it would need 
a separate critical study. 

But before passing on to consider how far the United 
States now differs from the republic which the French 
philosopher described, we must pause to ask ourselves 
whether his description was complete. 

It is a salutary warning to those who think it easy to 
get to the bottom of the political and social phenomena 
of a nation, to find that so keen and so industrious an 
observer as Tocqueville, who seized with unrivalled 
acuteness and described with consummate art many of 
the minor features of American politics, omitted to no- 
tice several which had already begun to show their heads 
in his day, and have since become of the first importance. 
Among these are — 

The system of party organization. It was full grown 
in some States (New York for instance), and spreading 
quickly through the rest. 



346 HAMILTON AND TOCQUEVILLE 

The influence of commercial growth and closer com- 
mercial relations in binding together different States 
of the Union and breaking down the power of State 
sentiment. He does in one passage refer to this influ- 
ence, but is far from appreciating the enormous force it 
was destined to exercise, and must have exercised even 
without railways. 

The results of the principle proclaimed definitely just 
before his visit, and already operative in some places, 
that public office was to be bestowed as a reward for 
political service, and held only so long as the party which 
bestowed it remained in power. 

The assertion by President Monroe of the intention 
of the United States to regard as unfriendly (i.e. to do 
their best to resist) any extension of the ' European 
system ' to the American Continent, and any further 
colonization thereof or intrusion by European powers 
thereon. 

The rise of the Abolitionists (they had begun to or- 
ganize themselves before 1830, and formed a National 
Anti-Slavery Society in 1833) and the intense hostility 
they aroused in the South. 

The growth of the literary spirit, and the beginnings 
of literary production. The society which produced 
Washington Irving, Fenimore Cooper, Channing, Haw- 
thorne, Emerson, Longfellow, Thoreau, Prescott, Tick- 
nor, Margaret Fuller, Holmes, Lowell, Parkman — not 
to add some almost equally famous later names — de- 
served mention as a soil whence remarkable fruits might 
be expected which would affect the whole nation. Yet 
it is not once referred to, although one can perceive that 
Tocqueville had spent some time in Boston, for many 
of his views are evidently due to the conversations he 
held with the leading Whigs of that day there. 

The influence of money on politics. It might surely 
have been foretold that in a country with such resources, 
and among a people whose restless commercial activity 
would be able to act on a vast scale, great piles of wealth 



HAMILTON AND TOCQUEVILLE 347 

would soon be accumulated, that this wealth would per- 
ceive objects which it might accomplish by legislative 
aid, would seek to influence governments, and would 
find ample opportunities for doing so. But of the 
dangers that must thence arise we do not hear a word. 

VII. Examination of Tocqueville's Views. 

Such was the aspect of the United States in 1832, 
such the predictions which an unusually penetrating and 
philosophic mind formed of its future. I will not attempt 
to inquire how far the details of the picture are accu- 
rate, because it would be unprofitable to contest state- 
ments without assigning one's own reasons, while to 
assign them would lead me into a historical disquisition. 
A shorter and simpler course will be to inquire in what 
respects things have changed since his time, for thus we 
shall be in a position to discern which of the tendencies 
he noted have proved permanent, what new tendencies 
have come into being, what are the main tendencies 
which are now controlling the destinies of the Republic. 

I have noted at the end of last section the phenomena 
which, already existing in Tocqueville's day, he omitted 
to notice or to appraise to their due value. Let us see 
what time has brought forward since his day to alter 
the conditions of the problem as he saw it. 

The great events that have befallen since 1834 are 
these : — 

The annexation of Texas in 1845. 

The war with Mexico in 1846, leading to the enlarge- 
ment of the United States by the vast territories which 
are now California, Nevada, Utah, Idaho, Arizona, and 
New Mexico. 

The making of railways over the whole country, cul- 
minating with the completion of four or five great Trans- 
Continental roads (the first in 1869). 

The establishment of lines of swift ocean steamers be- 
tween America and Europe. 



348 HAMILTON AND TOCQUEVILLE 

The immigration from Ireland (immensely increased 
after the famine of 1846), and from Germany (beginning 
somewhat later), and from Scandinavia, Austria-Hun- 
gary, and Russia (later still). 

The War of Secession, 1861-65 ; together with the ex- 
tinction of Slavery. 

The laying of submarine cables to Europe, and the 
extension of telegraphic communication over the whole 
Union. 

The settlement of the Alabama claims, an event 
scarcely less important in American history than in 
English, because it greatly diminished the likelihood of 
a war between the two countries. In Tocqueville's time 
the hatred of Americans to England was rancorous. 

The growth of great cities. In 1830, only two had a 
population exceeding 100,000. There are now (census 
of 1900) thirty-eight which exceed that population 1 . 

The growth of great fortunes, and of wealthy and 
powerful trading corporations ; the extension of mining, 
especially silver and gold mining; the stupendous de- 
velopment of speculation, not to say gambling, in stocks 
and produce. 

The growth of the universities and of many kindred 
literary and scientific institutions. 

The war with Spain in 1898, and consequent annexa- 
tion of Hawaii (which might probably not have been 
taken but for naval needs supposed to have been dis- 
closed by the war), of Puerto Rico, and of the Philippine 
Isles. 

These are events which have told directly or indirectly 
upon politics. I go on to enumerate the political 
changes themselves of the same sixty-seven years. 

Democratization of State Constitutions, total aboli- 
tion of property qualifications, choice of judges (in most 
States) by popular vote and for terms of years, restric- 

1 In 1790 there were only six cities with populations of at least 8,000. There are 
now 545. The percentage of urban to rural population (taking- urban as that of a 
city of 8,000) was then 3.4 and is now 33.1. 



HAMILTON AND TOCQUEVILLE 349 

tions on the power of State Legislatures, more frequent 
use of the popular vote or so-called Referendum 1 . 

Development of the Spoils System, consequent de- 
gradation of the increasingly large and important civil 
service, both Federal, State, and Municipal. 

Perfection and hierarchical consolidation, on nomi- 
nally representative but really oligarchic lines, of party 
organizations ; consequent growth of Rings and Bosses, 
and demoralization of city government. 

Enfranchisement of the negroes through amendments 
to the Constitution. 

Intensification of National (as opposed to State) sen- 
timent consequent on the War of Secession; passion 
for the national flag; rejection of the dogmas of State 
sovereignty and right of nullification. 

Increased importance of currency and other financial 
problems : emergence of industrial questions as bases 
for party organization : efforts to found a Labour Party 
and a ' People's Party.' 

To these I add, as powerfully affecting politics, the 
development not only of literary, scientific and historical 
studies, but in particular of a new school of publicists, 
who discuss constitutional and economic questions in a 
philosophic spirit ; closer intellectual relations with Eu- 
rope, and particularly with England and Germany ; re- 
sort of American students to German Universities; in- 
creased interest of the best class of citizens in politics ; 
improved literary quality of the newspapers and of peri- 
odicals (political and semi-political) generally ; growth 
of a critical and sceptical spirit in matters of religion 
and philosophy; diminished political influence of the 
clergy. 

We may now ask which of Tocqueville's observations 
have ceased to be true, which of his predictions falsified. 
I follow the order in which they were presented in the 
last section. 

1 Especially in the form of the amendment of particular provisions of State Con- 
stitutions. 



350 HAMILTON AND TOCQUEVILLE 

Although the powers of the several States remain in 
point of law precisely what they were (except as regards 
the Constitutional amendments presently to be noticed) 
and the citizen depends as much now as then upon the 
State in all that relates to person and property, to the 
conduct of family and commercial relations, the National 
.or Federal Government has become more important to 
him than it was then. He watches its proceedings more 
closely, and, of course, thanks to the telegraph, knows 
them sooner and more fully. His patriotism is far more 
national, and in case of a conflict between one or more 
States and the Federal power, the sympathies of the 
other States would probably be with the latter. 

Local government has been maintained in its com- 
pleteness, but it seems to excite less interest among the 
people. In the larger cities it has fallen into the hands 
of professional politicians, who have perverted it into a 
grasping and sordid oligarchy. 

There is still, as compared with Continental Europe, 
little ' administration,' though more than in Tocque- 
ville's time. But the influence of Federal legislation on 
the business of the country is far greater than it was, for 
the tariff and the currency, matters of increased conse- 
quence ever since the war, are in its hands. 

The dignity of the judicial bench has in most States 
suffered seriously from the system of popular election 
for comparatively short terms. In those States where 
nomination by the Executive has been retained, and in 
the case of the Federal Judges (nominated by the Presi- 
dent), the position is perhaps the highest permanent 
one open to a citizen. 

The President's authority received a portentous en- 
largement during the War of Secession, and although 
it has now returned to its normal condition, the sense 
of its importance has survived. His election is contested 
with increasing excitement, for his immense patronage 
and the magnitude of the issues he may influence by his 
veto power give individuals and parties the strongest 



HAMILTON AND TOCQUEVILLE 351 

grounds for hope and fear. Experience has, on the 
whole, confirmed the view that the re-eligibility of an 
acting President (i.e. the power of electing him for an 
immediately succeeding term) might well be dispensed 
with. 

The credit of the Supreme Court suffered somewhat 
from its pro-slavery decisions just before the war, and 
may possibly have suffered slightly since in respect of 
its treatment of the Legal Tender question. Neverthe- 
less it remains respected and influential. 

The State Constitutions, nearly all of which have been 
re-enacted or largely amended since 1834, remain in- 
ferior to the Federal Constitution, and the State legisla- 
tures are, of course (possibly with a very few excep- 
tions in the New England States), still more inferior to 
Congress. 

Two great parties reappeared immediately after 
Tocqueville wrote, and except for a brief interval be- 
fore the Civil War when the Whig party had practically 
expired before its successor and representative the Re- 
publican party had come to maturity, they have con- 
tinued to divide the country, making minor parties of 
slight consequence. Now and then an attempt is made 
to start a new party as a national organization, but it 
rarely becomes strong enough to maintain itself. The 
rich and educated renewed their interest in politics under 
the impulse of the Slavery and Secession struggle. 
After a subsequent interval of apathy they seem to be 
again returning to public life. The secret murmurs 
against democracy, whereof Tocqueville speaks, are 
confined to a handful of fashionable exquisites less self- 
complacent now than they were in the days when they 
learnt luxury and contempt for the people in the Paris 
of Louis Napoleon. 

Although newspapers are better written than formerly 
and those of the great cities travel further over the coun- 
try, the multitude of discordant voices still prevents the 
people from being enslaved by the press, which however 



352 HAMILTON AND TOCQUEVILLE 

shows an alarming capacity for exciting them. The 
habit of association by voluntary societies maintains 
itself. 

The defects of the professional politicians, a term 
which now more precisely describes those whom 
Tocqueville calls by the inappropriate European name 
of ' the governors,' continue at least as marked as in his 
time. 

So, too, the House of Representatives continues less 
influential than the Senate, but for other reasons than 
those which Tocqueville assigns, and to a less degree 
than he describes. The Senate has not, since 1880, main- 
tained the character he gives it ; and the fact that it is 
still chosen in the way which he commended shows that 
the merits he ascribed to it were not due to its mode of 
choice. Indeed in the judgement of most thoughtful 
men, popular election in the States would give a better 
Senate than election by the State Legislatures now does. 

American magistrates never did in general enjoy the 
arbitrary power Tocqueville ascribes to them. They as- 
suredly do not enjoy it now, but in municipalities there 
is a growing tendency to concentrate power, especially 
the appointing power, in the hands of one or a few offi- 
cers in order that the people may have some one person 
on whom responsibility can be fixed. Such power is 
sometimes very wide, but it cannot be called arbitrary. 
I A few minor offices are unsalaried; the salaries of the 
greater ones have been raised, particularly in the older 
States. 

The methods of administration, especially of Federal 
J administration, have been much improved, but are still 
behind those of the most advanced European countries, 
one or two departments excepted. 

Government is far from economical. The war of the 
Rebellion was conducted in the most lavish way : the 
high protective tariff raises a vast revenue, and direct 
local taxation takes more from the citizen than in most 
European countries. An enormous sum is spent upon 



HAMILTON AND TOCQUEVILLE 353 

pensions to persons who purport to have served in the 
Northern armies during the Civil War 1 . 

Congress does not pass many public statutes, nor do 
they greatly alter ordinary law within the sphere open 
to federal legislation. Many legislative experiments are 
tried in the newer States, but the ordinary private law 
is in no such condition of mutability as Tocqueville de- 
scribes. The law of England suffered more changes be- 
tween 1868 and 1885 than either the common or statute 
law of the older States of the Union. 

The respect for the rights of others, for the regular 
course of legal process, for the civil magistrate, remains 
strong; nor have the rich (although of late years more 
threatened) seriously begun to apprehend any attacks 
on them, otherwise than as stockholders in great railway 
and other corporations. 

The tyranny of the majority is not a serious evil in 
the America of to-day, though people still sometimes 
profess alarm at it. It cannot act through a State legis- 
lature so much as it may have done in Tocqueville's 
days, for the wings of these bodies have been effectively 
clipped by the newer State constitutions. Faint are the 
traces which remain of that intolerance of heterodoxy 
in politics, religion or social views whereon he dilates 2 . 
Politicians on the stump still flatter the crowd, but many 
home truths are told to it nevertheless in other ways and 
places, and the man who ventures to tell them need no 
longer fear social proscription (at least in time of peace) 
in the Northern or Western States, perhaps not even in 
the Southern. 

The Republic came scatheless out of a terrible civil t/ 
war, and although the laurels of the general who con- 
cluded that war twice secured for him the Presidency, 
they did not make his influence dangerous to freedom. 

1 In 1892 the expenditure on this head was $155,000,000 ; in 1901 it was estimated 
at $142,000,000. 

2 Competent American observers in Tocqueville's own time thought he greatly- 
exaggerated this danger. See a letter from Jared Sparks printed in Professor 
Herbert B. Adams' interesting monograph Jared Sparks and Alexis de Tocque- 
ville, in Johns Hopkins University Studies, 1898. 

2%. 



. ' 



354 HAMILTON AND TOCQUEVILLE 

There is indeed no great capital, but there are cities 
greater than most European capitals, and the Republic 
has not been imperilled by their growth. The influence 
of the clergy on public affairs has declined : whether or 
no that of religion has also been weakened it is more dif- 
ficult to say. But all Americans are still agreed that re- 
ligion gains by its entire detachment from the State. 

The negro problem remains, but it has passed into 
a new and for the moment less threatening phase. 
Neither Tocqueville nor any one else then living could 
have foreseen that manumission would come as a war 
measure, and be followed by the grant of political rights. 
It is no impeachment of his judgement that he omitted 
to contemplate a state of things in which the blacks have 
been made politically the equals of the whites, while in- 
ferior in most other respects, and destined, apparently, 
to remain wholly separate from them. He was right in 
perceiving that fusion was not possible, and that libera- 
tion would not solve the problem, because it would not 
make the liberated fit for citizenship. Fit — that is to 
say, as fit as a considerable part of the white population 
— they will probably in the long run become, but even 
then the social problem will remain. His remark that 
the repulsion between the races in the South would pro- 
bably be greater under freedom than under slavery has 
so far been strikingly verified, by the result. 

All the forces that made for the maintenance of the 
Federal Union are now stronger than they were then, 
while the chief force that opposed it, viz., the difference 
of character and habits between North and South, 
largely produced by the existence of slavery, tends to 
vanish. Nor does the growth of the Union make the 
retention of its parts in one body- more difficult. On the 
contrary, the United States is a smaller country now 
when it stretches from the Bay of Fundy to the Gulf of 
California, with its seventy-six millions of people, than 
it was then with its thirteen millions, just as the civilized 
world was larger in the time of Herodotus than it is now, 



HAMILTON AND TOCQUEYILLE 355 

for it took twice as many months to travel from Perse- 
polis or the Caspian Sea to the Pillars of Hercules as 
it does now to circumnavigate the globe, one was obliged 
to use a greater number of languages, and the journey 
was incomparably more dangerous. Before steamboats 
plied on rivers, and trains ran on railways, three or four 
weeks at least were consumed in reaching Missouri from 
Maine. Now one goes in six days of easy travelling 
right across the continent. 

Nor has the increased number of States bred more 
dissensions. The forty-five States of to-day are not as 
Tocqueville assumes, and this is the error which vitiates 
his reasonings, forty-five nations. The differences in 
their size and wealth have become greater, but they work 
more harmoniously together than ever heretofore, be- 
cause neither the lines which divide parties nor the sub- 
stantial issues which affect men's minds coincide with 
State boundaries. The Western States are now, so far 
as population goes, the dominant section of the Union, 
and become daily more so. But their interests link 
them more closely than ever to the North Atlantic 
States, through which their products pass to Europe, 
and the notion once entertained of moving the capital 
from Washington to the Mississippi valley has been 
quietly dropped. 

VIII. Concluding Summary. 

Before bidding farewell to our philosopher, let us 
summarize his conclusions. 

He sees in the United States by far the most success- 
ful and durable form of democratic government that has 
yet appeared in the world. 

Its merits are the unequalled measure of freedom, 
freedom of action, but not of thought, which it secures 
to the ordinary citizen, the material and social benefits 
it confers on him, the stimulus it gives to all his prac- 
tical faculties. 



356 HAMILTON AND TOCQUEVILLE 

These benefits are likely to be permanent, for they 
rest upon the assured permanence of 

Social equality ; 

Local self-government ; 

Republican institutions ; 

Widely diffused education. 

It is true that these benefits would not have been at- 
tained so quickly nor in such ample measure but for the 
extraordinary natural advantages of the New World. 
Nevertheless, these natural advantages are but subsidi- 
ary causes. The character of the people, trained to free- 
dom by experience and by religion, is the chief cause, 
their institutions the second, their material conditions 
onlyjthe third ; for what have the Spaniards made of like 
conditions in Central and South America x ? 

Nevertheless, the horizon is not free from clouds. 

What are these clouds ? 

Besides slavery and the existence of a vast negro 
population they are — 

The conceit and ignorance of the masses, perpetually 
flattered by their leaders, and therefore slow to correct 
their faults. 

The withdrawal from politics of the rich, and inferior 
tone of ' the governors,' i.e. the politicians. 

The tyranny of the majority, which enslaves not only 
the legislatures, but individual thought and speech, 
checking literary progress, and preventing the emer- 
gence of great men. 

The concentration of power in the legislatures (Fede- 
ral and State), which weakens the Executive, and makes 
all laws unstable. 

The probable dissolution of the Federal Union, either 
by the secession of recalcitrant States or by the slow de- 
cline of Federal authority. 

There is therefore warning for France in the example 

1 The [conditions of most parts of the tropical regions of South and Central 
America are in reality quite different from those of the American Union taken as 
a whole. 



HAMILTON AND TOCQVEVILLE 357 

of America. But there is also encouragement — and the 
encouragement is greater than the warning. 

Of the clouds which Tocqueville saw, one rose till it 
covered the whole sky, broke in a thunderstorm, and 
disappeared. Others have silently melted into the blue. 
Some still hang on the horizon, darkening parts of the 
landscape. 

Let us cast one glance back at the course which 
events have actually taken as compared with that which 
Hamilton first, and Tocqueville afterwards, expected. 

The Republic fared far otherwise than as Hamilton 
and his friends either hoped or feared. In this there is 
nothing to impeach their wisdom. They saw the dangers 
of their own time, and like wise and patriotic men pro- 
vided the best remedies which existing conditions per- 
mitted. Some dangers they overcame so completely, 
particularly the financial misdoings of State legislatures, 
that these have now passed out of memory. They could 
not foresee what the power of money would become, be- 
cause there was then little money in the country. They 
could not foresee the astonishing development of party 
machinery, because it is a perfectly new thing in the his- 
tory of the world: and human imagination never does 
more, at any rate in the field of politics and sociology, 
than body forth things a little bigger than, or in some 
other wise a little varying from, what they have been 
before. It cannot create something out of nothing. 
Least of all could they divine what the results would be 
of the coexistence of the money power and the party ma- 
chine. Nor did even Tocqueville, writing half a century 
later, when wealth had already appeared and the party 
machine was in places beginning to work, perceive what 
both had in store. 

How would Tocqueville amend his criticisms were he 
surveying the phenomena of to-day ? 

He would add to his praise of the United States that 
its people re-established their government on firm foun- 
dations after a frightful civil war, that their army went 



1 

I 



358 HAMILTON AND TOCQTJEYILLE 

back to its peaceful occupations, that they paid off their 
debt, that they have continued to secure a free field for 
an unparalleled industrial development and to maintain 
a hitherto unattained standard of comfort, that the level 
of knowledge and intellectual culture has risen enor- 
mously. He would admit that he had overrated the 
dangers to be feared from a tyrannical majority and had 
underrated the strength of the Union. But he would 
stand aghast, as indeed all the best citizens in the United 
States do now, at the mismanagement and corruption of 
city governments. He would perceive that the party 
organizations have now become the controlling force in 
the country, more important than the Legislature or 
the Executive. He would recognize the evils incident 
to the habit of regarding public office as a means of pri- 
vate advantage to its holder and the bestowal of it as a 
reward for party services. And he would, while gladly 
owning that the older forms of faction had ceased to be 
alarming, note a new development which the spirit of 
faction has taken in the tendency to look at and deal 
with both legislation and foreign affairs from the point 
of view of party advantage. Want of foresight or in- 
sight in those who direct the affairs of a mighty nation 
is at all times a misfortune: but when foresight and in- 
sight are set aside for the sake of some transitory party 
gain, the results may be even more serious. 

This, however, is a tendency inherent in all schemes 
of government by party. It is familiar and formidable 
in European countries also. 



VII 

TWO SOUTH AFRICAN CONSTI- 
TUTIONS * 



I. The Conditions under which these Consti- 
tutions AROSE. 

The old Greek saying, 'Africa is always bringing 
something new 2 ,' finds an unexpected application in the 
fact that there exist in South Africa two Dutch republics 
possessing constitutions diverse in type from any of 
those which we find subsisting in other modern States. 
The system established by these two South African in- 
struments resembles neither the English, or so-called 
' Cabinet,' system of government,— which has been more 
or less imitated by the other free countries of Europe, 
and has been reproduced in the self-governing British 
colonies,— nor the American, or so-called 'Presiden- 
tial,' system, as it exists in the United States and the 
several States of the American Union. And although 
it bears some resemblance to the constitution of the 
Swiss Confederation and to the constitutions of the 
cantons of Switzerland, this resemblance is not a close 

i This Essay was composed early in 1896, and describes the Constitutions of the 
Orange Free State and South African Republic as they stood in December 1895, the 
month when the fatal invasion of the latter Republic by the police of the British S. 
Africa Company took place. I have left it, for obvious reasons, substantially un- 
changed save that here and there I have corrected what seemed to be errors, have 
added one or two references to recent events, and have explained some constitu- 
tional points with more fullness. In its original form, the Essay appeared in the 
Forum in April 1896. . ... 

2 Myerai tis irapoi*u'a on ad <f>epe<. Ai(3uij Tl kccvov. Anst. Hist. A mm. vm. 28. 



360 TWO SOUTH AFRICAN CONSTITUTIONS 

one, and is evidently not due to conscious imitation, but 
to a certain similarity of phenomena suggesting similar 
devices. The constitutions of these two Dutch republics 
are the product, the pure and original product, of Afri- 
can conditions, having drawn comparatively little from 
the experience of older countries, or from the models 
their schemes of government afford. Moreover, these 
South African constitutions grew up upon a perfectly 
virgin soil. There was no pre-existing political organi- 
zation, such as the old feudal polities supplied in some 
countries of Europe, out of which these Republics could 
develop themselves. There were no charters or guilds 
or companies, such as those which gave their earliest 
form to the governments of several of the older Ameri- 
can States. Nor was there any home pattern to be 
copied, as the British colonies have, by the aid of sta- 
tutes of the Imperial Parliament, copied the constitution 
of the United Kingdom. 

This is one of the most interesting features of these 
Constitutions. They are not specifically Dutch. Neither 
are they English. Nothing is more uncommon in his- 
tory than an institution starting de novo, instead of being 
naturally evolved out of some earlier form. The simple 
farmers who drafted the documents which I propose to 
describe, knew little about the systems either of Europe 
or of America. Few possessed any historical, still fewer 
any legal, knowledge. Many were uneducated men, 
though with plenty of rough sense and mother wit. 
They would have liked to get on without any govern- 
ment, and were resolved to have as little as possible. 
Circumstances, however, compelled them to form some 
sort of organization ; and in setting to work to form one, 
with little except their recollections of the local arrange- 
ments of Cape Colony to guide or to assist them, they 
came as near as any set of men ever have come to the 
situation which philosophers have so often imagined, 
but which has so rarely in fact occurred — that of free and 
independent persons uniting in an absolutely new social 



TWO SOUTH AFRICAN CONSTITUTIONS 361 

compact for mutual help and defence, and thereby creat- 
ing a government whose authority has had, and can have 
had, no origin save in the consent of the governed. 

A few preliminary words are needed to explain the 
circumstances under which the constitutions of the 
Orange Free State and of the South African Republic 
(commonly called the Transvaal) were drawn up. 

As early as 1820 a certain number of farmers, mostly 
of Dutch origin, living in the north-eastern part of Cape 
Colony, were in the habit of driving their flocks and 
herds into the wilderness north of the Orange River, 
where they found good fresh pasture during and after 
the summer rains. About 1828 a few of these farmers 
established themselves permanently there, still of course 
remaining subjects of the British Crown, which had 
acquired Cape Colony first by conquest and then by pur- 
chase in 1806 and 1814. In 1835-6, however, a much 
greater number of farmers migrated from the colony ; 
some in larger, some in smaller bodies. They had vari- 
ous grievances against the British Government, some 
dating back as far as 1815: and they desired to live by 
themselves in their own way, untroubled by the Gover- 
nors whom it sent to rule the country 1 . Between 1835 
and 1838 a considerable number of these emigrants 
moved into the country beyond the Orange River, some 
remaining there, others pushing still further to the 
north-east into the hitherto unknown regions beyond 
the Vaal River, while a third body, perhaps the largest, 
moved down into what was then a thinly peopled Kafir 
land, and is now the British colony of Natal. This is 
not the place in which to relate the striking story of 
their battles with the Zulu king and of their struggle with 
the British Government for the possession of Natal. It 
is enough to say that this third body ultimately quitted 
Natal to join the other emigrants north of the moun- 

1 A concise account of these grievances and a sketch of the subsequent history 
of the emigrants may be found in Dr. Theal's Story of South Africa (published by 
Messrs. Putnam), and in my Impressions of South Africa, chaps, xi and xii. See 
also Dr. Theal's larger History of the Boers in South Africa. 



362 TWO SOUTH AFRICAN CONSTITUTIONS 

tains ; and that, after many conflicts between those emi- 
grants and the native tribes, and some serious difficulties 
with successive Governors of Cape Colony, the British 
Government finally, by a Convention signed at Sand 
River in 1852, recognized the independence of the set- 
tlers beyond the Vaal River, while, by a later Conven- 
tion signed at Bloemfontein in 1854, it renounced the 
sovereignty it had claimed over the country between the 
Orange River and the Vaal River, leaving the inhabi- 
tants of both these territories free to settle their own 
future form of government for themselves. 

These two Conventions are the legal and formal 
starting-points of the two republics in South Africa, and 
from them the history of those republics, as self-govern- 
ing states, recognized in the community of nations by 
international law, takes its beginning. The emigrant 
farmers had, however, already been driven by the force 
of circumstances to establish some sort of government 
among themselves. As early as 1836 an assembly of one 
of the largest emigrant groups then dwelling in the 
Orange River Territory, elected seven persons to con- 
stitute a body with legislative and judicial power. In 
1838 the Natal emigrants established a Volksraad (coun- 
cil of the people) which. consisted of twenty-four mem- 
bers, elected annually, who met every three months and 
had the general direction of the affairs of the commu- 
nity, acting during the intervals between the meetings 
by a small committee called the Commissie Raad. All 
important measures were, however, submitted to a 
general meeting called the Publiek, in which every 
burgher was entitled to speak and vote. It was a pri- 
mary assembly, like the Old English Folk Mot, or the 
Landesgemeinde of the older Swiss Cantons. A some- 
what similar system prevailed among the farmers settled 
in the country beyond the Vaal River. They too had a 
Volksraad, or sometimes — for they were from time to 
time divided into separate and practically independent 
republican communities — several Volksraads • and each 



TWO SOUTH AFRICAN CONSTITUTIONS 363 

district or petty republic had a commandant-general. 
Their organization was really more military than civil, 
and the commandant-general with his Krygsraad (coun- 
cil of war), consisting of the commandants and field cor- 
nets within the district, formed the nearest approach to 
a regular executive. I have unfortunately been unable 
to obtain proper materials for the internal political his- 
tory, if such a term can be used, of these communities 
before they proceeded to enact the constitutions to be 
presently described, and fear that such materials as do 
exist are very scanty. But, speaking broadly, it may be 
said that, in all the communities of the emigrant farmers, 
supreme power was deemed to be vested in an assembly 
of the whole male citizens, usually acting through a 
council of delegates, and that the permanent officials 
were generally a magistrate, called a landrost, in each 
village, a field cornet in each ward, and a commandant 
in each district. All these officials were chosen by the 
people l . In these primitive arrangements consisted the 
materials out of which a constitutional government had 
to be built up. 

From this point the history of the Orange River Ter- 
ritory, which by the Convention of 1854 was recognized 
as the Orange Free State, and that of the Transvaal 
Territory begin to diverge. In describing the constitu- 
tions of the republics, I take first that of the Orange 
Free State, because it dates from 1854, while the existing 
constitution of the Transvaal is four years younger, hav- 
ing been adopted in 1858. The former is also by far the 
simpler and shorter document. 

When the British Government in 1854 voluntarily di- 
vested itself of its rights over the Orange River Terri- 
tory, greatly against the will of some of its subjects 
there, the inhabitants of that Territory were estimated 
at 15,000 Europeans, most of them of Dutch, the rest of 

1 I am indebted for most of these facts regarding the early organization of the 
emigrants to Dr. G. M. Theal's History of the Boers in South Africa, a book of 
considerable merit and interest, which, however, carries its narrative down only 
to 1854. 



364 TWO SOUTH AFRICAN CONSTITUTIONS 

British origin. (The number of native Kafirs was much 
larger, but cannot now be estimated.) The great ma- 
jority were farmers, pasturing their sheep and cattle on 
large farms, but five small villages already existed, one 
of which, Bloemfontein, has grown to be a town of 
5,800 people, and is now the capital. The Volksraad, or 
assembly of delegates of the people, framed, and on 
April 10, 1854, enacted, a constitution for the new re- 
public. This constitution was revised and amended in 
1866, and again in 1879, but the main features of the 
original instrument remain. I proceed to deal with it 
as it now stands. 

II. Constitution of the Orange Free State. 

This Constitution, which is in the Dutch language, and 
is called. Dc Constitutie, is a terse and straightforward 
document of sixty-two articles, most of which are only 
a few lines in length x . It begins by defining the qualifi- 
cations for citizenship and the exercise of the suffrage 
(articles 1 to 4), and incidentally imposes the obligation 
of military service on all citizens between the ages of 
sixteen and sixty. Only whites can be citizens. New- 
comers may obtain citizenship if they have resided one 
year in the state and have real property to the value 
of at least £150 sterling ($750), or if they have resided 
three successive years and have made a written promise 
of allegiance. 

Articles 5 to 27 deal with the composition and func- 
tions of the Volksraad, or ruling assembly, which is de- 
clared to possess the supreme legislative authority. It 
consists of representatives (at present fifty-eight in num- 
ber), one from each of the wards or Field Cornetcies, 
and one from the chief town or village of each of the (at 
present nineteen) districts. They are elected for four 

1 My thanks are due to the distinguished Chief Justice of the Free State (Mr. 
Melius de Villiers) for much information kindly furnished to me regarding this 
Constitution. 



TWO SOUTH AFRICAN CONSTITUTIONS 365 

years, one-half retiring every two years. Twelve con- 
stitute a quorum. Every citizen is eligible who has not 
been convicted of crime by a jury or been declared a 
bankrupt or insolvent, who has attained the age of 
twenty-five years, and who possesses fixed (i.e. real) 
unmortgaged property of the value of £500 at least. 

The Volksraad is to meet annually in May, and may 
be summoned to an extra session by its chairman, as 
also by the President (§ 34), or by the President and the 
Executive Council (§ 45). 

The Volksraad has power to depose the President if 
insolvent or convicted of crime, and may also itself try 
him on a charge of treason^ bribery, or other grave 
offence ; but the whole Volksraad must be present or 
have been duly summoned, and a majority of three to 
one is required for conviction. The sentence shall in 
these cases extend only to deposition from office and 
disqualification for public service in future, a President 
so deposed being liable to further criminal proceedings 
before the regular courts. 

The votes of members of the Volksraad shall be re- 
corded on a demand by one-fifth of those present. The 
sittings are to be public, save where a special cause for 
a secret sitting exists. 

The Volksraad shall make no law restricting the right 
of public meeting and petition. 

It shall concern itself with the promotion of religion 
and education. 

It shall promote and support the Dutch Reformed 
Church. 

It may alter the constitution, but only by a majority 
of three-fifths of the votes in two consecutive annual 
sessions. 

It has power to regulate the administration and 
finances, levy taxes, borrow money, and provide for 
the public defence. 

Articles 28 to 41 deal with the choice and functions 
of the President of the state. 



366 TWO SOUTH AFRICAN CONSTITUTIONS 

He is to be elected by the whole body of citizens, 
the Volksraad, however, recommending one or more 
persons to the citizens 1 . 

He is chosen for five years and is re-eligible. 

He is the head of the executive, charged with the 
supervision and regulation of the administrative depart- 
ments and public service generally, and is responsible 
to the Volksraad, his acts being subject to an appeal to 
that body. He is to report annually to the Volksraad, 
to assist its deliberations by his advice, but without the 
right of voting, and, if necessary, to propose bills. He 
makes appointments to public offices, and may fill va- 
cancies that occur when the Volksraad is not sitting, but 
his appointments require its confirmation. (Such con- 
firmation has been hardly ever, if ever, refused.) He 
may also suspend public functionaries, but dismissal ap- 
pears to require the consent of the Volksraad. 

Articles 42 to 46 deal with the Executive Council. It 
consists of five members, besides the State President, 
who is ex-ofUcio chairman, with a deciding or overriding 
vote (bestissende stem). Of these five, one is the landrost 
(magistrate) of Bloemfontein, another the State Secre- 
tary, both these officials being appointed by the Presi- 
dent and confirmed by the Volksraad; the remaining 
three are elected by the Volksraad. This Council ad- 
vises the President, but does not control his action in 
matters which the Constitution entrusts to him, reports 
its proceedings annually to the Volksraad, and has the 
rights, in conjunction with the President, of pardoning 
offenders and of declaring martial law. 

Regarding the judicial power only two provisions re- 
quire mention. Article 48 declares this power to be ex- 
clusively exercisable by the courts of law established by 
law. Article 49 secures trial by jury in all criminal 
causes in the superior courts. 

Local government and military organization, subjects 

1 In practice, the recommendation of the majority of the Volksraad is lookei'. 
upon as likely to ensure the election of the person so recommended. 



TWO SOUTH AFRICAN CONSTITUTIONS 367 

intimately connected in Dutch South Africa, occupy arti- 
cles 50 to 56 inclusive. 

A field cornet is elected by the citizens of each ward, 
a field commandant by those of each district, in both 
cases from among themselves 1 . In case of war, all the 
commandants and cornets taken together elect a Com- 
mandant-General, who thereupon receives his instruc- 
tions from the President. Those who elected him may, 
with the consent of the President, dismiss him and 
choose another. Every field cornet and commandant 
must have landed property, the latter to the value of 
£200 at least. 

Article 57 declares Roman Dutch law to be the com- 
mon law of the state 2 . 

Articles 58 and 59 declare that the law shall be ad- 
ministered without respect of persons and that every 
resident shall be held bound to obey it, while articles 60, 
61, and 62 guarantee the rights of property, of personal 
liberty, and of press freedom. 

It will be convenient to defer general criticisms upon 
the frame of government established by this Constitu- 
tion till we have examined that of the sister republic 
of the Transvaal, which agrees with it in many re- 
spects. But we may here briefly note, before passing 
further, a few remarkable features of the present instru- 
ment. 

1. It is a Rigid constitution, i.e. one which cannot be 
changed in the same way and by the same authority as 
that whereby the ordinary law is changed, but which 
must be changed in some specially prescribed form — in 
this case, by a three-fourths majority of the Volksraad 
in two successive sessions 3 . 

2. The body of the people do not come in as a vot- 



1 In the earlier days of Rome the army elected its subordinate officers. 

2 Roman Dutch law is the common law all over South Africa, even in the almost 
purely English colony of Natal (though of course not in Portuguese or German 
territory). It has been largely affected, especially in the British colonies, by recent 
legislation. 

3 As to Rigid Constitutions, see Essay III. 



368 TWO SOUTH AFRICAN CONSTITUTIONS 

ing power, save for the election of the President and 
Commandant-General. All other powers, even that 
of amending the constitution, belong to the Volks- 
raad. 

3. There is only one legislative chamber. 

4. The President has no veto on the acts of the 
legislature. 

5. The President has the right of sitting in and ad- 
dressing the legislature. 

6. The President's Council is not of his own choosing, 
but is given him by the legislature. 

7. The heads of the executive departments sit neither 
in the Council nor in the legislature. 

8. The legislature may apparently reverse any and 
every act of the President, save those (pardon of offences 
and declaration of martial law) specially given to him 
and the Executive Council. 

American readers will have noted for themselves some 
few points in this Constitution which have been drawn 
from that of the United States. Others are said to have 
been suggested by the Constitution framed for the 
French Republic in 1848. Comparatively few contro- 
versies upon the construction of the Constitution have 
been debated with any warmth. One, which gave rise 
to a difference of opinion between the Volksraad and 
the Supreme Court of the state, arose upon the question 
whether the Volksraad has power to punish a citizen 
for contempt by committing him to prison for a long 
term, and to direct the State Attorney to prosecute him. 
The judges disapproved what they deemed an uncon- 
stitutional stretching of authority by the legislature. 
Using the opportunities of influencing public opinion 
which the delivery of charges to juries gave them, they 
ultimately so affected the mind of the people that the 
Volksraad tacitly retired from its position, leaving the 
question of right undetermined. 



TWO MOUTH AFRICAN CONSTITUTIONS 309 



III. Constitution of the South African Republic. 

The South African Republic, or Transvaal State as 
it is popularly called, is ruled by a much longer, much 
less clear, and much less systematically arranged docu- 
ment than that established by its sister commonwealth 1 . 
A considerable part of the contents of this constitution 
is indeed unfit, as too minute, for a fundamental instru- 
ment of government ; and, whatever the intention of its 
framers may have been, it has not in fact been treated 
as a fundamental instrument. Whether it is really such, 
in strict contemplation of law, is a question often dis- 
cussed in professional circles in Pretoria and Johannes- 
burg. I shall summarize the more important of its 
provisions — they occupy two hundred and thirty-two 
articles — and endeavour therewith to present an outline 
of the frame of government which they establish. 

The Grondwet (Ground-law) or Constitution was 
drafted by a committee of an assembly of delegates and 
approved by the assembly itself in February, 1858. It 
is in Dutch, but has been translated into English more 
than once. 

Article 6 declares the territory of the republic open to 
every stranger who submits himself to the laws — a pro- 
vision noteworthy in view of recent events — and declares 
all persons within the territory equally entitled to the 
protection of person and property. 

Article 8 states, inter alia; that the people ' permit the 
spread of the Gospel among the heathen, subject to 
prescribed provisions against the practice of fraud and 
deception ' ; a provision upon whose intention light is 
thrown by the suspicions felt by the Boers of the English 
missionaries. 

Article 9 declares that ' the people will not tolerate 

1 I have to thank my friend Mr. J. G. Kotze\ late Chief Justice of the South Afri- 
can Republic, for information kindly supplied to me regarding certain points in 
this Constitution. 
24 



370 TWO SOUTH AFRICAN CONSTITUTIONS 

equality between coloured and white inhabitants either 
in church or in state 1 .' 

Article 10 forbids slavery or dealing in slaves. 

Article 19 grants the liberty of the press. 

Articles 20 to 23 formerly declared that the people 
would maintain the principles of the doctrine of the 
Dutch Reformed Church, as fixed by the Synod of Dort 
in 1618 and 1619, that the Dutch Reformed Church shall 
be the Church of the State, that no persons shall be 
elected to the Volksraad who are not members of that 
Church, that no ecclesiastical authority shall be acknow- 
ledged save that of the consistories of that Church, and 
that no Roman Catholic Churches, nor any Protestant 
Churches save those which teach the doGtrine of the 
Heidelberg Catechism, shall be permitted within the re- 
public. But these archaic provisions were in the revised 
Grondwet of 1889 reduced to a declaration that only 
members of a Protestant Church should be elected to 
the Volksraad 2 . 

After these general provisions we come to the frame 
of government. Legislation is committed to a Volks- 
raad, ' the highest authority of the state.' It is to consist 
of at least twelve members (the number is at present 
twenty-four) who must be over thirty years of age and 
possess landed property. Each district returns an equal 
number of members. Residence within the district is 
not required of a candidate. The members were for- 
merly elected for two years, and one-half retired annu- 
ally. Their term was afterwards extended to four years. 
Every citizen who has reached the age of twenty-one 
enjoys the suffrage 3 (persons of colour are of course 

1 The Boers are a genuinely religious people, and read their Bibles. But they 
have shown little regard to i Corinthians xii. 13 ; Galatians iii. 28 ; and Colossians 
iii. 11. The same may be said of the people of the Southern States of America; 
and is indeed also true of the less religious English both in South Africa and in the 
West Indies. 

2 I am informed that even this restriction was abolished subsequently to 1895. 

3 The suffrage was by subsequent enactments restricted as respects immigrants 
and the sons of immigrants ; and in 1895 a person coming into the country could not 
obtain full electoral rights till after a period of twelve years. In July 1899, three 



TWO SOUTH AFRICAN CONSTITUTIONS 371 

incapable of voting or of being elected). The unwork- 
able provision of the old Grondwet that ' any matter dis- 
cussed shall be decided by three-fourths of the votes ' 
was subsequently repealed. 

Three months are to be given to the people for inti- 
mating to the Volksraad their opinion on any proposed 
law, ' except laws which admit of no delay ' (§ 12), but 
laws may be discussed whether published three months 
before their introduction or introduced during the ses- 
sion of the Volksraad (§ 43). The sittings are to open 
and close with prayer, and are to be public, unless the 
chairman or the President of the Executive Council 
deems secrecy necessary. 

If the high court of justice declares the President, or 
any member of the Executive Council, or the Command- 
ant-General, unfit to fill his office, the Volksraad shall 
remove from office the person so declared unfit and shall 
provide for filling the vacant office. 

The administration, as well as the proposal, of laws 
was by the old Grondwet given to an Executive Council 
(§ 13). The revised instrument vests it in the State Presi- 
dent. The President is elected for five years by the citi- 
zens voting all over the country. He must have attained 
the age of thirty and be a member of a Protestant (for- 
merly of the Dutch Reformed) Church (§ 56). He is 
the highest officer of the state, and appoints all officials. 
All public servants, except those who administer justice, 
are subordinate to him and under his supervision. In 
case of his death, dismissal, or inability to act, his func- 
tions devolve on the oldest member of the Executive 
Council till a new appointment is made. The Volksraad 
shall dismiss him on conviction of any serious offence. 
He is to propose laws to the Volksraad — ' whether ema- 
nating from himself or sent in to him by the people ' — 
and support them in that body either personally or 
through a member of the Executive Council. He has, 

months before the war which broke out in that year, the period was shortened to 
seven years owing to pressure by the British Government. 



372 TWO SOUTH AFRICAN CONSTITUTIONS 

however, no right to vote in the Volksraad. He recom- 
mends to the Volksraad persons for appointment to 
public posts ; and may suspend public servants, saving 
his responsibility to the Volksraad. He submits an esti- 
mate of revenue and expenditure, reports on his own 
action during the past year and on the condition of the 
republic, visits annually all towns and villages where any 
public office exists to give due opportunity to the inhabi- 
tants of stating their wishes. 

The Executive Council consists of four official mem- 
bers besides the President, namely, the State Secretary, 
the Commandant-General, the Superintendent of Native 
Affairs, and the Keeper of Minutes (Notulenhouder), and 
of two other members. All except the Commandant- 
General are elected by the Volksraad ; the Secretary for 
four years, the two other members for three years. The 
Commandant-General is elected by the burghers of the 
whole republic for ten years. All, including the Presi- 
dent, are entitled to sit, but not to vote, in the Volksraad. 
The President and Council carry on correspondence 
with foreign powers, and may commute or remit a penal 
sentence. A sentence of death requires the unanimous 
confirmation of the Council. The President may, with 
the unanimous consent of the Council, proclaim war and 
publish a war ordinance summoning all persons to serve 
(§§23, 66, 84). 

The provisions relating to the military organization 
(§§93-114) are interesting chiefly as indicating the 
highly militant character of the republic. Express pro- 
vision is made not only for foreign war and for the 
maintenance of order at home, but also for the cases of 
native insurrection and of disaffection or civil war among 
the whites. The officers are all elected by the burghers, 
the Commandant-General by the whole body of burghers 
for ten years, the commandants in each district for five 
years, the field cornets and assistant field cornets in the 
wards for three years. 

The judiciary (§§ 1 15-135) consists of landrosts(magis- 



TWO SOUTH AFRICAN CONSTITUTIONS 373 

trates who also discharge administrative duties), heem- 
raden (local councillors or assessors), and jurors. The 
provisions regarding the exercise of judicial power are 
minute and curious in their way, but have no great in- 
terest for constitutional purposes. Two landrosts are 
proposed to the people of the judicial district by the 
Executive Council, and the people vote between these 
two. Minute provisions regarding the oaths to be taken 
by these officials and by jurymen, and regarding the 
penalties they may inflict, fill the remaining articles. A 
guarantee for the independence of the courts is to be 
found in the general statement in article 15 that ' the 
judicial power is vested in landrosts, heemraden, and 
jurors,' and in the declaration (§ 57) that the judicial offi- 
cers are ' left altogether free and independent in the 
exercise of their judicial power.' A High Court and a 
Circuit Court, not provided for in the old Grondwet, 
appear in that of 1889, and are appointed for life. The 
High Court consists of a chief justice and four puisne 
judges. 

The old Grondwet also contained some curious details 
relating to civil administration (which was primarily en- 
trusted to the judicial officers, supported by the com- 
mandants and field cornets), and the revenue of the 
State, which was intended to be drawn chiefly from fees 
and licences, the people having little disposition to be 
directly taxed. The farm tax was not to exceed forty 
dollars, and the poll-tax, payable by persons without or 
with only one farm, was fixed at five dollars annually. 
Five dollars was the payment allowed to each member 
of the Volksraad for each day's attendance. Most of 
these provisions have disappeared from the instrument 
of 1889. The salary of the President of the Council, 
which had been fixed at 5,333 dollars, 2 schellings, and 
4 stuivers, to be increased as the revenue increased, 
now amounts to £7,000 sterling ($35,000) per annum, 
besides allowances. 

The most considerable change made since 1889 was 



374 TWO SOUTH AFRICAN CONSTITUTIONS 

the establishment, in 1890, of a chamber called the Sec- 
ond Volksraad, which is elected on a more liberal basis 
than the First Volksraad, persons who have resided 
in the country for two years, have taken an oath of 
allegiance and have complied with divers other require- 
ments, being admissible as voters. This assembly, how- 
ever, enjoys little real power, for its competency is con- 
fined to some specified matters, and to such others as 
the First Volksraad may refer to it ; and its acts may be 
overruled by the First Raad, whereas the Second Raad 
has no power of passing upon the resolutions or laws 
enacted by the First Raad. The Second Volksraad is, 
therefore, not a second chamber in the ordinary sense 
of the term, such as the Senate in American States or 
the House of Lords in England, but an appendage to the 
old popular House. It was never intended to exercise 
much power, and was, in fact, nothing more than a con- 
cession, more apparent than real, to the demands of 
the Uitlanders, or recent immigrants excluded from 
citizenship. 

A few general observations may be made on this 
Constitution before we proceed to examine its legal cha- 
racter and effect. 

It was in its older form a crude, untechnical docu- 
ment, showing little trace on the part of those who 
drafted it either of legal skill or of a knowledge of other 
constitutions. The language was often vague, and many 
of the provisions went into details ill-fitted for a funda- 
mental law. 

Although enacted by and for a pure democracy, it was 
based on inequality — inequality of whites and blacks, 
inequality of religious creeds. Not only was the Dutch 
Reformed Church declared to be established and en- 
dowed by the State, but Roman Catholic churches were 
forbidden to exist, and no Roman Catholic nor Jew nor 
Protestant of any other than the Dutch Reformed 
Church was eligible to the presidency, or to membership 
of the legislature or executive council. In its improved 



TWO SOUTH AFRICAN CONSTITUTIONS 375 

shape (1889) some of these faults have been corrected, 
and in particular the religious restrictions were reduced 
to a requirement that the President, the Secretary of 
State, the Landrosts and the members of the Volksraad 
should belong to a Protestant Church. The door, how- 
ever, remained barred against persons of colour. 

It contained and still contains little in the nature of 
a Bill of Rights, partly perhaps from an oversight on 
the part of its draftsmen, but partly also owing to the 
assumption — which the early history of the republic 
amply verified — that the government would be a weak 
one, unable to encroach upon the rights of private 
citizens. 

The first legal question which arises upon an exami- 
nation of this Constitution relates to its stability and 
permanence. Is it a Rigid or a Flexible Constitution? 
That is to say, can it, like the constitution of the Orange 
Free State and that of the United States, be altered 
only in some specially prescribed fashion ? Or may it be 
altered by the ordinary legislature in the ordinary way, 
like any other part of the law? 

In favour of the former alternative, that the consti- 
tution is a Rigid one, appeal has been made not only 
to the name Grondwet (Ground-law), but, which is of 
more consequence, to some of its language. The gene- 
ral declarations of the power of the people, the form in 
which they entrust power to the legislature, to the Ex- 
ecutive Council, and to the judiciary respectively (as 
well as to the military authority), look as if meant to 
constitute a triad of authorities, similar to that created 
by the constitutions of American States, no one of which 
authorities may trespass on the province of the others. 
Some things seem intended to be secured against any 
alteration by the legislature, e. g., article 9 declares that 
' the people will not allow of any equality between co- 
loured and white inhabitants'; article 11 declares that 
' the people reserve to themselves the exclusive right 
of protecting and defending the independence and 



376 TWO SOUTH AFRICAN CONSTITUTIONS 

inviolability of Church and State, according to the 
laws.' 

On the other hand, it is argued that the constitution 
must be deemed to be a Flexible one, because it did 
not in its original form, and does not now, contain any 
provision whereby it may be altered, otherwise than by 
the regular legislature of the country acting according 
to its ordinary legislative methods. One cannot suppose 
that no change was intended ever to be made in the 
Grondwet. That supposition would be absurd in view 
of the very minute provisions on some trivial subjects 
which it contains. No distinction is drawn, by the terms 
of the instrument, between these minutiae and the pro- 
visions of a more general and apparently permanent na- 
ture. Ergo, all must be alterable, and alterable by the 
only legislative authority, that is to say, the Volksraad. 
This view, moreover, is the view which the legislature 
has in fact taken, and in which the people have certainly 
acquiesced. Some changes have been made — such as 
the admission to the electoral franchise of persons not 
belonging to the Dutch Reformed Church, the creation 
of a new supreme court, and the establishment of a 
Second Volksraad — which are not consistent with the 
Grondwet, but whose validity has not been contested. 

The difficulty which arises from the fact that, whereas 
the framers of the Grondwet appear to have desired to 
make parts of their work fundamental and unchangeable, 
they have nevertheless drawn no distinction between 
those parts and the rest, and have provided no specific 
security against the heedless change of the weightiest 
parts, may be explained by noting that they were not 
skilled jurists or politicians, alive to the delicacy of the 
task they had undertaken. They expected that the 
Volksraad would continue to be of the same mind as 
they were then, and would respect what they considered 
fundamental ; they relied on the general opinion of 
the nation. They had, moreover, provided a method 
whereby the nation should always have an opportunity 



7'irO SOUTH AFRICAN CONSTITUTIONS 377 

of expressing its opinion upon legislation, namely, the 
provision (§ 12) that the people should have a period of 
three months within which to ' intimate to the Volksraad 
their views on any proposed law,' it being assumed that 
the Volksraad. would obey any such intimation, although 
no means is provided for securing that it will do so. 

This provision has given rise to a curious question. 
It excepts ' those laws which admit of no delay.' Now 
the Volksraad has in fact neglected the general provi- 
sion, and, instead of allowing the three months' period, 
has frequently hastily passed enactments upon which 
the people have had no opportunity of expressing their 
opinion. Such enactments, which have in some instances 
purported to alter parts of the Grondwet itself, are called 
'resolutions ' (besluite) as opposed to laws ; and when ob- 
jection has been taken to this mode of legislation, 
these resolutions seem to have been usually justified on 
the ground of urgency, although in fact many of them, 
if important, could hardly be called urgent. They have 
been treated as equally binding with laws passed in ac- 
cordance with the provisions of the Grondwet (for up 
to 1895 article 12 seems not to have been formally al- 
tered) ; and it is only recently that their validity has been 
seriously questioned in the courts. Those who support 
their validity argue that in passing such resolutions as 
laws, the Volksraad must be taken to have implicitly, 
but decisively, repealed the provision of article 12; or 
that, if this be not so, still the Volksraad is under article 
12 the sole judge of urgency, and can legally treat things 
as urgent which are, in fact, not so ; a view affirmed by 
the Chief Justice in a case (State v. Hess) which arose in 
1895. They add that even apart from both these argu- 
ments the unbroken usage of the Volksraad during a 
number of years, tacitly approved by the people, must 
be deemed to have established the true construction of 
the Constitution, especially as according to Roman 
Dutch law, usage, whether affirmative or negative, can 
alter written enactments and could thus annul the direc- 



378 TWO SOUTH AFRICAN CONSTITUTIONS 

tions of article 12. So it is written in the Digest of Jus- 
tinian (I. 3. 32) : ' Inveterata consuetudo pro lege custo- 
ditur . . . nam quid interest suffragio populus vo- 
luntatem suam declaret an rebus ipsis et factis ? Quare 
rectissime etiam illud receptum est ut leges non solum 
suffragio legis latoris, sed etiam tacito consensu omnium 
per desuetudinem abrogentur.' To this, however, it is 
answered that the principle of obsolescence by contrary 
practice cannot fitly be applied where a statute is recent 
and express. 

Until 1897, the High Court of the Transvaal had held 
that the resolutions as well as the laws passed by the 
Volksraad were fully valid, whether or no they had been 
submitted to the people for the period of three months, 
nor had the question of their being really urgent been 
raised. It had thus declared the Grondwet to be altera- 
ble by the Legislature, and. so not a Rigid Constitution. 
In that year, however, in the case of Brown v. Leyds, the 
Court held, by a majority, that a law which had been 
passed without having been submitted to the people 
during the period prescribed by the Grondwet was un- 
constitutional and therefore void, thus appearing to as- 
sert (for the language of the judgement is not very clear) 
the view that the Grondwet was a Rigid Constitution, 
not alterable by the Legislature. This action was 
warmly resented by the Executive and Legislature : and 
the latter passed a resolution directing the President to 
require from every judge on pain of dismissal a declara- 
tion that he would in future recognize as valid every 
law passed by the Volksraad, and not again assert the 
so-called ' testing power ' of inquiring whether a law 
conformed to the provisions of the Grondwet. The 
Chief Justice refused to make this declaration, and was 
accordingly dismissed, much to the regret of those who 
remembered his past services to the State. 

On a review of the whole matter, apart from the po- 
litical passion which has been brought into it, the true 
view would appear to be the following, though I state 



TWO SOUTH AFRICAN CONSTITUTIONS 379 

it with the diffidence becoming a stranger who is also im- 
perfectly informed as to the constitutional history of the 
republic. 

The Grondwet of the South African Republic, though 
possibly intended by its framers to be treated, in respect 
of its most important provisions, as a fundamental law 
not to be altered by the Volksraad in the exercise of its 
ordinary powers, is not really a Rigid constitution but 
a Flexible one. We have to look not so much at what 
the framers may have wished as at what the language 
employed actually conveys and imports ; and the absence 
of any provision, such as that contained in the Constitu- 
tion of the Orange Free State, for a special and peculiar 
method of change, is decisive upon this point. An Ameri- 
can lawyer, accustomed to construe strictly documents 
which contain or modify powers, might be inclined to 
argue that the validity of laws (not dealing with matters 
which ' admit of no delay ') which had been passed as 
mere resolutions, ignoring article 12, may have been 
doubtful until the Volksraad modified that article by 
legislation. But the Transvaal High Court had held that 
the question of urgency was a question for the discretion 
of the Volksraad ; and it must be added that persons ac- 
customed to other legal systems do not necessarily pro- 
ceed upon American principles. The Swiss, for instance, 
make their legislature the interpreter of the Constitu- 
tion for the purpose of determining the extent of legisla- 
tive power 1 . Allowing for this, and remembering that 
both the law courts and the whole people had until 1897 
treated the Volksraad as an absolutely sovereign body, 
the action it took in asserting its sovereignty need excite 
no surprise. It was claiming nothing more than the 
powers actually enjoyed by the British Parliament. 
However, although the Volksraad was merely enforcing 
the rights which it reasonably (and I think correctly) 
conceived itself to possess, and could not have permitted 
the majority of the High Court to assert a power pre- 

1 See Essay III, p. 195. 



380 TWO SOUTH AFRICAN CONSTITUTIONS 

viously unknown, a wiser course would have been to 
amend the Constitution in some way which would have 
given to the judiciary a more assured position than that 
which had been secured to them by a confessedly crude 
and imperfect instrument. It was through the confused 
language of the Grondwet that the whole difficulty arose, 
and while formally declaring that the Grondwet was not 
— as it certainly was not — a Rigid Constitution, the 
Volksraad ought to have endeavoured to render it more 
suited to the needs of a society which had grown to be 
different from that for which it had been originally 
enacted. 

IV. Observations on the Character and Working 
of both Constitutions. 

The principles of these Constitutions are highly demo- 
cratic. They were intended so to be. Among the whites 
settled in these wide territories there prevailed a perfect 
social equality, a passionate love of independence, and 
a strong sense of personal dignity. They were as little 
influenced by political theories as it was possible for 
any civilized men in this century to be. Their wish for a 
government purely popular, and indeed for very little 
of any government at all, was due to their personal ex- 
perience and to the conditions under which they found 
themselves in the wilderness ; and one may doubt 
whether they would have established a regular govern- 
ment but for the dangers which threatened them from 
the warlike native tribes. Such sentiments as I have de- 
scribed would have disposed them, had they lived in a 
city, or in a small area like the cantons of Uri or Ap- 
penzell in Switzerland, to have kept legislation and the 
determination of all grave affairs in the hands of a 
general meeting of the citizens. But they lived scat- 
tered over a vast wilderness, with no means of com- 
munication save ox-wagons which travel only some 
twelve miles a day. In the Orange River Territory when 



TWO SOUTH AFRICAN CONSTITUTIONS 381 

it became a state there were probably less than three 
thousand citizens, though its area was nearly that of 
England. Hence primary assemblies were impossible, 
and power had to be entrusted to a representative body. 

The predominance of the legislature is the most con- 
spicuous feature of both these constitutions. The Trans- 
vaal Volksraad originally made all the appointments to 
the civil service, for the President had only the right of 
proposing, and even in the revised Grondwet of 1889 
the Raad retains the right of approving or disapproving 
the President's appointments. In both republics the 
Volksraad appoints a majority of the Executive Council 
which surrounds the President, to advise, but also to 
watch and check him. It has complete control of reve- 
nue and expenditure. It may change the constitution, 
though, in the Orange Free State, only by a prescribed 
majority. The President has no veto on its acts ; nor is 
it, as in most modern free countries, divided into two 
chambers likely to differ from and embarrass one an- 
other. Its vote, which may, if it pleases, be a single vote, 
given under no restrictions but those of its own mak- 
ing, is decisive. 

The comparative feebleness of the other branches of 
government corresponds to the overwhelming strength 
of the legislature. The authority of the judiciary re- 
ceived from the first a somewhat vague recognition, and 
its independence was at one time, in the South African 
Republic, seriously threatened by the executive and 
legislature, and saved only by the exertions of the bench 
and bar, which aroused public opinion on its behalf. The 
later controversy between the Volksraad and the Chief 
Justice has been already discussed. In the Free State 
the Court's claim to be the proper and authoritative in- 
terpreter of the constitution, which would be clear upon 
English or American principles, was never formally ad- 
mitted. And though the judges are in both republics 
appointed for life, their salaries are at the mercy of the 
legislature. 



382 TWO SOUTH AFRICAN CONSTITUTIONS 

The executive head of the government has no doubt 
the advantage, as in an American State, of being directly 
chosen by the people, and not, as in France, by the 
legislature. But he has no veto on acts of the legisla- 
ture, while his acts can be overruled by it, at least in the 
Orange Free State, for in the Transvaal this may be 
more doubtful. Its approval is required to any appoint- 
ments he may suggest. He is hampered by an Executive 
Council which he has not himself selected, resembling 
in this respect an American State governor rather than 
the President of the Union. It may, in the Free State, 
try him and depose him if convicted. He has no military 
authority, such as that enjoyed by the British Crown 
and its ministers, or by the American President, for 
that belongs to the Commandant-General (though in the 
Orange Free State the Commandant ' receives instruc- 
tions ' from the President). 

Against all these sources of weakness there are 
only two things to set. The President can speak in 
the Volksraad, and he is re-eligible any number of 
times. 

The Executive Council, as already observed, seems 
intended to restrain the President, while purporting to 
aid and advise him. It may be compared to the Privy 
Council of mediaeval England, with the important dif- 
ference that it is appointed, not by the executive, but 
partly by the legislature, partly by the people. As we 
shall see presently, it has proved to be an unimportant 
part of the machinery of government. 

In all these points the two constitutions present a 
close likeness. They are also similar in the recognition 
which they originally gave, and have not wholly ceased 
to give, to a state church — an institution opposed to 
democratic ideas in America and in the British Colonies 
— as well as in their exclusion of persons of colour from 
every kind of political right. It would appear that upon 
this point there has never been any substantial difference 
of opinion in the two republics. Neither indeed is there 



TWO SOUTH AM I CAN CONSTITUTIONS 383 

much difference of opinion in the British parts of South 
Africa, for although the influence of English ideas has 
been so far felt that in Cape Colony persons of colour 
are permitted to vote, still the combination of a property 
qualification with an educational qualification greatly 
restricts their number. A republican form of gov- 
ernment, therefore, does not necessarily appear to 
make for ' human rights ' in the American sense of 
that term, any more than it did in the United States 
in 1788. 

Speaking generally, these two Constitutions carry the 
principle of the omnipotence of the representative cham- 
ber to a maximum. This will be more clearly seen if we 
compare the system they create, first with the cabinet 
system of Britain and her self-governing colonies, and 
secondly with the presidential system of the United 
States. 

The main differences between the South African 
scheme of government and the British may be briefly 
summarized. 

The head of the executive is, in the South African re- 
publics, chosen directly by the people, whereas in Brit- 
ain and her colonies the executive ministry is virtually 
chosen by the legislature 1 , though nominally by the 
Crown or its local representative. 

In these republics the executive cannot, as can mini- 
sters under the British system, be dismissed by a vote 
of the legislature, nor on the other hand has the execu- 
tive the power of dissolving the legislature. 

In these republics the nominal is also the real and 
acting executive head, whereas in the British system 
a responsible ministry is interposed between the nominal 
head and the legislature. 

In all the above-mentioned points the South African 
system bears a close resemblance to the American. 

1 Using the expression which Bagehot has made familiar, though of course 
Parliament is far from determining the entire composition of a ministry, which 
may occasionally contain persons it would not have selected. 



384 TWO SOUTH AFRICAN CONSTITUTIONS 

In these republics the President's Council need not 
consist of persons in agreement with his views of policy. 
It may even be hostile to him, as part of Warren Hast- 
ings's council at Calcutta was in permanent opposition 
to that governor. Nor does the Executive Council con- 
sist, like the (normal) British cabinet and United States 
Federal cabinet, of the heads of the great administrative 
departments, though several officials sit in it. 

On the other hand, the South African system agrees 
with the British in permitting the head of the working 
executive to speak in the legislature, a permission which 
has proved to be of the highest importance, and which 
in America is given by usage neither to the Federal 
President 1 nor to a State governor. 

The chief differences between the South African and 
the American system are the following : — 

The President has, in the South African republics, 
far less independence than belongs in the United States 
to either a Federal President or to the Governor of a 
State. He has no veto on acts of the legislature, and 
less indirect power through the patronage at his dispo- 
sal. Moreover, the one-chambered legislature is much 
stronger as against him than are the two-chambered 
legislatures of America, which may, and frequently do, 
differ in opinion, so that the President or Governor can 
play off one against the other. Further, as already ob- 
served, an American Federal President has a cabinet 
of advisers whom he has himself selected, and an Ameri- 
can State governor has usually officials around him who, 
being elected by a party vote at the same election, are 
probably his political allies ; whereas a South African 
President might possibly have an Executive Council of 
opponents forced on him by the Volksraad. And even 
in negotiations with foreign states, he cannot act apart 
from this Executive Council. 

The distinctive note of both these South African Con- 

1 Although there is nothing in the federal constitution to prevent a President 
from addressing either House of Congress. 



TWO SOUTH AFRICAN CONSTITUTIONS 385 

stitutions is the kind of relation they create between the 
Executive and the Legislature. These powers are not 
disjoined, as in the United States, because a South Afri- 
can President habitually addresses and may even lead 
the Volksraad. Neither are they united, as in Britain 
and her colonies, where the Executive is at the same 
time dependent on the legislature, and also the leader of 
the legislature, for the South African President is elected 
by the people for a fixed term, and cannot be displaced 
by the Volksraad. He combines the independence of an 
American President with the opportunities of influ- 
encing the legislature enjoyed by a British, or British 
colonial, Ministry. For nearly all practical purposes he 
is at the mercy of the legislature, because he has neither 
a veto, like the American President, nor a power of dis- 
solution, like the British Ministry. The Volksraad could 
take all real power from him, should it be so minded. 
But he is strong by the possession of the two advantages 
just mentioned. He can persuade his Volksraad, which 
has not, by forming itself into organized parties, become 
inaccessible to persuasion. He can influence the opinion 
of his people, because he is their choice, and a single man 
in a high place fixes the attention and leads the minds of 
a people more than does an assembly. 

It must, however, be remembered that the features — 
perhaps one may say the merits — which I have noted 
as shown in the working of the South African system, 
belong rather to small than to large communities. The 
Free State had in 1895 only some seventeen thousand 
voting citizens, the Transvaal not many more. Athens 
in the days of Themistocles had about thirty thousand. 
In large countries, with large Legislatures, whose size 
would engender political parties, things would work out 
differently. Furthermore, in a large State, the admini- 
strative departments would be numerous and their work 
heavy. The President could not discuss departmental 
affairs with the Raad, and could not easily be made per- 
sonally responsible for all that his administrative officers 
25 



386 TWO SOUTH AFRICAN CONSTITUTIONS 

did. And the less knowledge he had of affairs and of 
persons, the less influence he exerted over the Raad, the 
more would his Executive Council tend to check him. 
Its members would probably intrigue with the leaders of 
parties in the Volksraad, and make themselves a more 
important factor in the government than they have been 
while overshadowed by his personality. 

Any one who, knowing little or nothing about the 
social conditions and the history of these two republics, 
should try to predict the working of their governments 
from a perusal of their constitutions, would expect to 
find them producing a supremacy, perhaps a tyranny, of 
the representative assembly; for few checks upon its 
power are to be found within the four corners of either 
instrument. He would be prepared to see party govern- 
ment develop itself in a pronounced form. Power would 
be concentrated in the party majority and its leaders. 
The Executive would become the humble instrument of 
their will. The courts of law, especially in the Trans- 
vaal with its Flexible constitution, would be unable to 
stem the tide of legislative violence. The President 
might perhaps attempt to resist by producing a dead- 
lock over appointments ; and he would have a certain 
moral advantage in being the direct choice of the people. 
But the one-chambered Legislature would in all proba- 
bility prevail against him. 

Is this what has in fact happened? Far from it. 
Party government, in the English and American sense, 
has not made its appearance. The Legislature has not 
become the predominant power, subjecting all others 
to itself. It has, in general, followed the lead of the 
Executive. The Courts of law, though (in the Trans- 
vaal) at one moment menaced, have administered jus- 
tice with fairness and independence. But in order to 
describe what has happened, I must, in a very few sen- 
tences, deal separately with the Orange Free State and 
the South African Republic, for though their constitu- 
tions are similar and the origin of their respective popu- 



TWO SOUTH AFRICAN CONSTITUTIONS 387 

lations nearly identical 1 , their history has been very 
different. 

The Orange Free State had, for many years prior to 
1899, a comparatively tranquil and uneventful career. 
One native war inflicted some injury upon it, but the 
result of that war was to give it a strip of valuable terri- 
tory. It had joined the British colonies in a South 
African Customs Union, had placed its railroads under 
the management of the Cape Government, had main- 
tained friendly relations with the two British self-govern- 
ing colonies, had extended the franchise to immigrants 
on easy terms, and was at all times recognized as abso- 
lutely independent by the British Government. Inter- 
nally its development, if not rapid, was both steady and 
healthful. There was no poverty among the people, and 
hardly any wealth. No exciting questions arose to di- 
vide the citizens, and no political parties grew up. The 
Legislature, although too large, has been a sensible, 
business-like body, which wasted no more time than 
debate necessarily implies. From 1863 to 1888 it was 
guided by the counsels of President Brand, whom the 
people elected for five successive terms, and whose 
power of sitting in it and addressing it proved of the 
utmost value, for his judgement and patriotism inspired 
perfect confidence. His successor Mr. Reitz, who was 
obliged by ill-health to retire from office in 1895, en- 
joyed equal respect and almost equal influence, when he 
chose to exert it, with the Volksraad, and things went 
smoothly under him, as they promised to do under Presi- 
dent Steyn, who was elected in 1896, for the latter also 
was believed — so I heard when visiting the Free State 
in 1895 — to possess the qualities which had endeared his 
predecessors to the community. The Executive Council 
has not proved to be a very valuable part of the scheme 
of government ; and some judicious observers thought 
the constitution ought to be amended by strengthening 

1 The British element is larger among the citizens of the Orange Free State than 
it is in the burgher population of the Transvaal. 



388 TWO SOUTH AFRICAN CONSTITUTIONS 

the position of the courts and introducing provisions for 
a popular vote on constitutional amendments, similar 
to those which exist in American States and in Switzer- 
land. But, on the whole, the system of government 
worked smoothly, purely and efficiently; the Legisla- 
ture was above suspicion, and the people were content 
with their institutions. 

Very different had been the annals of the South Afri- 
can Republic. Soon after the Grondwet was adopted 
in 1858, a civil war broke out; and from that time onward 
factions and troubles of all kinds were seldom wanting. 
In 1877 the country, then threatened by native enemies, 
was annexed to the British dominions against the will 
of the people : in 1881 its autonomy was restored, subject 
to British suzerainty 1 . Its government, however, con- 
tinued to be pressed by financial and other difficulties, 
till the discovery of rich gold-fields in 1884-6, while sud- 
denly increasing the revenue, drew in a stream of im- 
migrants which has steadily continued to flow, and 
therewith raised that new crop of political troubles of 
which all the world has heard 2 . The result has been that 
the Constitution has never had any period of compara- 
tive peace in which its working" could be fairly tested. 
If it has not worked as smoothly as that of the Free 
State, this may be due not merely to inherent defects 
but to the strain which civil and foreign wars have 
placed upon it. The Legislature, however, has not 
played the leading part. President Burgers, who held 

1 A further convention was made in 1884, whose articles, omitting all reference 
to ' suzerainty ' conceded an independence qualified only in respect of the veto 
retained by Britain over treaties with foreign powers. 

2 When these immigrants from all parts of the world swarmed into the coun- 
try, admission to the franchise was made more difficult, because the conservative 
section of the citizens naturally feared that the newcomers, many of whom did not 
intend to make the country their home, might, if they forthwith acquired voting 
power, soon secure a majority and overturn the existing system of the republic, 
including the official use of the Dutch language and the relations of Church and 
State. These non-burgher immigrants have been absurdly described as ' helots.' 
A closer parallel to them is to be found not in the semi-serfs of Sparta but in the 
class of resident aliens known at Athens as metics (jiteTotKoi). But they were indeed 
far better off than that class, since they enjoyed full civic rights in all matters of 
private law, wanting only the right of sharing in the government. 



TWO SOUTH AFRICAN CONSTITUTIONS 389 

office from 1872 till 1877, was, like President M. W. Pre- 
torius before him, practically more powerful than the 
Volksraad; and since 1881 President Kruger, who has 
been thrice re-elected, has been the ruling force in the 
politics of the country. By his influence over the peo- 
ple, by his constant presence and speeches in the Volks- 
raad, he threw its leaders entirely into the shade, and 
probably exerted more actual power than the chief ma- 
gistrate of any other republic, though there was scarcely 
any other chief magistrate whose legal authority was 
confined within such narrow limits. So much may fo- 
reign troubles or economic and social facts, and so much 
do the qualities of individual men, affect and modify 
and prevail over the formal rules and constitutional ma- 
chinery of government. The Legislature therefore has 
not had in the Transvaal that career of encroachment 
upon and triumph over the other authorities in the State 
which might have been predicted for it. Its turn might 
have come when external relations were tranquil and 
domestic controversies arose. When foreign affairs oc- 
cupy men's minds and call for rapid decision as well as 
for continuity of policy, the Legislature is apt to be, in 
all countries, dwarfed by the Executive. 

Postscript. 

Since the foregoing sketch of these remarkable ex- 
periments in the construction of Frames of Government 
was written (in 1896), both the Dutch republics have 
become involved in a deplorable war with England, 
which has lasted for many months, and still continues 
at the time of this writing. It has brought misery and 
desolation upon South Africa, and not least upon that 
singularly happy, prosperous, peaceful and well-governed 
community, the Orange Free State. While the flames 
are still raging, no one can conjecture in what form 
these two constitutions will emerge from the furnace, 
or whether indeed they will survive at all. In the midst 



390 TWO SOUTH AFRICAN CONSTITUTIONS 

of so terrible a catastrophe, a catastrophe unredeemed 
by any prospect of benefit to any of the combatants, 
and one whose results must be fateful in many ways for 
the future of South Africa, and possibly also of Bri- 
tain, the destruction or transformation of constitutions 
seems but a small matter. But had these two republics 
been suffered to continue the normal course of their 
constitutional development, that development would 
have been full of interest. It might even have conveyed 
valuable instruction or suggested useful examples to 
other small commonwealths, for in the scheme of these 
Constitutions, and especially in that of the Free State, 
there are some merits not to be found either in the 
American or in the British system. These simple Free 
State farmers were wiser in their simplicity than some 
of the philosophers who have at divers times planned 
frames of government for nascent communities. But 
though Wisdom is justified of all her children, she can- 
not secure that her children shall survive the shock of 
arms. 



VIII 

THE CONSTITUTION OF THE 
COMMONWEALTH OF AUSTRALIA 

I. Introductory. 

Australia is the first instance in history of a whole 
continent whose inhabitants are all (if we exclude the 
vanishing aborigines) of one race and all owe one alle- 
giance. Thus it has supplied the only instance in which 
a political constitution has been, or could have been, 
framed for a whole continent. It is moreover one of 
the very few cases in history in which a number of com- 
munities politically unconnected (save by their common 
allegiance to a distant Crown) who had felt themselves 
to be practically a nation have suddenly transformed 
themselves into a National State, formally recognizing 
their unity and expressing it in the national institutions 
which they proceeded to create. There could hardly be 
a more striking illustration of the speed with which 
events have been moving during the last and the present 
age than the fact that Australia, or New Holland as it 
was then called, was, except as to part of its coasts, 
marked as a Terra Incognita upon our maps so late as 
the beginning of the eighteenth century, that the first 
British settlement was not planted in it at Sydney (not 
far from Captain Cook's Botany Bay) till 1788, that re- 
sponsible government was not conferred upon the oldest 



392 THE AUSTRALIAN COMMONWEALTH 

colony, New South Wales, until 1855, nor upon West 
Australia till 1890. 

Besides the interest with which every one must see 
the birth of a new nation, occupying a vast and rich 
territory, the student of political science finds further 
matter for inquiry and reflection in the enactment of an 
elaborate constitution for the Commonwealth of Au- 
stralia. Every creation of a new scheme of government 
is a precious addition to the political resources of man- 
kind. It represents a survey and scrutiny of the consti- 
tutional experience of the past. It embodies an experi- 
ment full of instruction for the future. The statesmen 
of the Convention which framed this latest addition to 
the world's stock of Instruments of Government had 
passed in review all previous experiments, had found 
in them examples to follow and other examples to shun, 
had drawn from them the best essence of the teachings 
they were fitted to impart. When the Convention pre- 
pared its highly finished scheme of polity, it delivered 
its judgement upon the work of all who had gone before, 
while contributing to the materials which will be avail- 
able for all who come hereafter to the work of building 
up a State. 

Nearly all the precedents which the Australian Con- 
vention had at its disposal belong to very recent times, 
in fact to the last century and a half. Though federal 
governments are ancient — the oldest apparently is that 
formed by the cities of Lycia in the fourth century B.C. 
— the ancient federations scarcely got beyond the form 
of leagues of small republics for the purpose of common 
military defence. Such leagues never quite grew into 
Federal States, properly so called, i.e. States in which 
the central government exercises direct power over the 
citizens of the component communities. The same re- 
mark applies to the confederacies of the Middle Ages, 
such as that of the Hanse Towns and that of the old 
Swiss Cantons, as well as to the United Provinces of 
the Netherlands. The first true Federal State founded 



77//; AUSTRALIAN COMMONWEALTH 393 

on a complete and scientific basis was the United States, 
which dates from 1788, when its present Constitution 
was substituted for the Articles of Confederation of 
1776. Next came the Constitution of the Swiss Con- 
federation, enacted in 1848, and replacing a much looser 
form of union which had previously joined the Cantons 
of Switzerland. Its present amended form dates from 
1874. The third was the Constitution of Canada, estab- 
lished by the British North America Act of 1867. Still 
later came the Constitution of the North German Con- 
federation (1866) enlarged into that of the new Ger- 
manic Empire (1871), a remarkable Federal State with 
a monarch for its head, and including as its members 
both large kingdoms, such as Bavaria and Wiirtemberg, 
and the city republics of Liibeck, Bremen, and Ham- 
burg 1 . But this last-named Federation, instructive as it 
is, deals with conditions too dissimilar from those of 
Australia to furnish many precedents in point. It was 
the Constitutions of the United States and of Canada 
which the Australians studied most carefully, and 
whence they drew as well inspiration as many useful 
suggestions. And the student who examines the Au- 
stralian scheme will find it interesting to note many 
points that recall, by way either of likeness or of con- 
trast, the systems of the United States, of Switzerland, 
and of Canada. It is only with these three that I propose 
to compare the Australian Constitution in the pages that 
follow. As I am writing not for lawyers but for stu- 
dents of history and of constitutions, who desire to un- 
derstand the nature of this new Government sufficiently 
to follow with intelligence the course of political life 
under it, I shall pass lightly over its more technical and 
more purely legal aspects, and dwell rather upon those 
general features which will give to the future Australian 
polity its character and spirit. 

1 One might add the Constitution of the Austro-Hungarian Monarchy, which 
is a sort of double federation. But it is too peculiar to serve as an example to other 
peoples proposing' to federate. 



394 TEE AUSTRALIAN COMMONWEALTH 

II. The Movement for Federation. 

Like the settlements of Britain in North America, the 
Australian settlements were organized as Colonies at 
different dates, and several of them independently of the 
others 1 . So, again like those of North America, each 
remained legally unconnected with the others, except 
through the allegiance they all owed to the British 
Crown, which sent out Governors to administer them. 
These officers were at first practically despotic ; but 
when self-government was conferred upon a Colony, 
they became the nominal heads of an executive which 
in fact consisted of ministers responsible to the elective 
legislature of that Colony. 

Little as there was in the way of official connexion 
between the scattered settlements, their inhabitants al- 
ways deemed themselves Australians, giving their senti- 
mental attachment rather to the country as a whole than 
to their respective colonies. They were all English; 
they all lived under similar conditions : their local life 
had not lasted long enough to form local traditions with 
which sentiment could entwine itself. The very names 
of some of the colonies did not favour individualization, 
for who would call himself a Newsouthwalesian? And 
the idea that the colonies ought to be united into one 
political body emerged very early. As far back as 1849 
a Committee in England had recommended that there 
should be a Governor-General for all Australia, with 
power to convene a General Assembly to legislate on 
matters of common colonial interest, and a bill intro- 
duced into Parliament in that year contained clauses for 
establishing such a legislature. These provisions were 
dropped, for the time was not ripe, yet the idea continued 
to occupy the minds of Australian statesmen from that 

1 New South Wales in 1788, Tasmania in 1825, Western Australia in 1829, South 
Australia in 1836, Victoria in 1851, Queensland in 1859. Victoria and Queensland 
had however been originally settled (1836 and 1S26), and for some time admini- 
stered, from New South Wales, while Tasmania had been made a penal settlement 
as early as 1804. 



THE AUSTRALIAN COMMONWEALTH 395 

year onwards ; and it received a certain impulse from 
the creation of the Canadian Confederation in 1867. 
What it wanted was motive power, that is to say, a sense 
of actual evils or dangers to be averted, of actual bene- 
fits to be secured, by the union of the Colonies into one 
National State. Democratic communities, occupied by 
their own party controversies, are little disposed to deal 
with questions which are not urgent, and which hold out 
no definite promise either of benefit to the masses or of 
political gain to the leaders. However, in 1883 events 
occurred which evoked a new Pan-Australian feeling, 
and indicated objects fit to be secured by a united Au- 
stralian government. The late Lord Derby, then Secre- 
tary of State for the Colonies, was the most cautious and 
unsentimental of mankind. He belonged to the old 
school of English statesmen who deprecated — and in 
some cases wisely deprecated — further additions to the 
territories and responsibilities of Britain. Disregard- 
ing the representations of the Governments of several 
among the Colonies, he neglected to occupy the north- 
ern part of the great neighbouring island of New Guinea 
which Australian opinion desired to see British, and 
permitted it, to their great vexation, to be taken by 
Germany. About the same time the escape of convicts 
into Australia from the French penal settlement in New 
Caledonia had caused annoyance, and movements were 
soon afterwards made by France which seemed to in- 
dicate an intention to appropriate the New Hebrides 
group of islands. These occurrences roused the Au- 
stralians to desire an authority which might deliver their 
common wishes to the Home Government and take any 
other steps necessary for guarding their common in- 
terests. Accordingly a conference of delegates from all 
the Colonies, including New Zealand and Fiji, met in 
1884, and prepared a scheme which was transmitted to 
England, and was there forthwith enacted by the Im- 
perial Parliament under the name of The Federal Coun- 
cil of Australasia Act, 1885. This scheme was, how- 



396 THE AUSTRALIAN COMMONWEALTH 

ever, (as I observed when it was under discussion in the 
House of Commons) a very scanty, fragmentary and im- 
perfect sketch of a Federal Constitution. It had no 
executive power and no command of money. No colony 
need join unless it pleased, and each might withdraw 
when it pleased. Thus it befell that the plan excited 
little popular interest, and gave such faint promise of 
energetic action that only four colonies, Victoria, 
Queensland, Tasmania, and South Australia, entered 
into it; and of these South Australia presently with- 
drew. Meanwhile the need for some general military 
organization for all the Colonies began to be felt; and 
further objects attainable by union floated before men's 
minds. With the increase of trade and industry, the 
vexation of tariff barriers between the colonies grew 
daily less tolerable. Subjects emerged on which uni- 
formity of legislation was felt to be needful. The irriga- 
tion question, one of great importance for so arid a 
country, brings New South Wales, where some of the 
large rivers have their source, into close relation with 
Victoria and South Australia, and requires to be treated 
on common lines. These and other grounds led to an 
Inter-Colonial Conference of Ministers at Melbourne in 
1890, and then to the summoning of a Convention of 
Delegates from the Parliaments of all the Colonies, in- 
cluding Tasmania. This latter body, which included 
many leading men, met at Sydney in 1891, debated the 
matter with great ability, and produced a Draft Bill, 
which became the basis of all subsequent discussions. 
The movement, hitherto confined to a group of political 
leaders, now began to be taken up by the people, and be- 
came, especially when the financial troubles of 1893 had 
begun to pass away, the principal subject in men's minds. 
That crisis had shown all the Colonies how closely their 
interests were bound together, and had made them de- 
sire to remove every hindrance to an industrial and 
financial recovery. A Conference of Prime Ministers 
at Hobart in 1895 led to the passing by the several Co- 



THE AUSTRALIAN COMMONWEALTH 397 

lonial Parliaments of enabling Acts under which dele- 
gates were chosen, this time (following recent American 
precedents) by popular vote, to a new Convention which 
met at Adelaide (in South Australia) in 1897. It pro- 
duced a second draft constitution, based on that of 1891, 
and laid it before the legislatures of the Colonies for 
criticism. About seventy-five amendments were pro- 
posed, and were considered by the Convention at its 
further sittings, which closed in March, 1898. The draft 
Constitution was then submitted to a popular vote, a 
new expedient in the British dominions, but one amply 
justified by the need for associating the people with the 
work. New South Wales alone failed to adopt it by the 
prescribed majority, because a large section of her in- 
habitants thought that her interests had not been duly 
regarded, but after a few amendments had been in- 
serted at a conference of the Colonial Prime Ministers, 
her people ratified it upon a second vote. On this vote 
enormous majorities were secured in Victoria, South 
Australia and Tasmania, smaller ones in New South 
Wales and Queensland. The Constitution was then sent 
to England and passed into law by the Parliament of 
the United Kingdom under the title of The Common- 
wealth of Australia Constitution Act (63 & 64 Vict. 
cap. 12). Action by the Imperial Parliament was not 
only a convenient way of overriding all the colonial con- 
stitutions by one comprehensive Act, but was legally 
necessary, inasmuch as some provisions of the Consti- 
tution transcended the powers of all the colonial legisla- 
tures taken together. Since it had from the first been 
understood that the wish of the mother country was not 
to impose her own views but simply to carry out the 
wishes of the Colonies, only one slight alteration, an 
alteration rather of form than substance, was made in 
the draft as transmitted from Australia, the ill-con- 
sidered notion of introducing a larger change having 
been eventually dropped by the British Ministry. 

I have mentioned these details in order to emphasize 



398 TEE AUSTRALIAN COMMONWEALTE 

the time, care and pains bestowed by the Australians — 
for the work was entirely their own — upon this latest 
effort of constructive statesmanship. The Constitution 
of the United States was framed by a Convention which 
sat at Philadelphia, with closed doors, for nearly five 
months, and was accepted by Conventions in all the 
thirteen States without change, though ten amendments 
were immediately thereafter passed by general consent, 
their adoption having been the price paid for the ratifi- 
cation of the main instrument by some doubtful States. 

The Constitution of Canada took a little more than 
two years to settle. The Resolutions on which it was 
based were first of all drafted by a conference of dele- 
gates at Quebec. These were approved after full debate 
by the legislatures of the Provinces, and were, after 
some modifications, embodied in a Bill prepared by a 
small conference of Canadian statesmen who met in 
London. The Bill was then passed by the Imperial Par- 
liament, never having been submitted to any popular 
vote. But this Australian instrument is the fruit of de- 
bates in two Conventions, of a minute examination by 
legislatures, of a subsequent revision by the second Con- 
vention, of further modifications in a few details by a 
conference of Prime Ministers, and has after all this 
preparation been sealed by the approval of the peoples 
of the Colonies concerned. The process of incubation 
lasted for nearly nine years, being all the while conducted 
in the full blaze of newspaper reporting and under the 
constant oversight of public opinion. 

III. The Causes which brought about Federation. 

The reasons and grounds assigned by the advocates 
of Federation were more numerous than those urged in 
the United States in 1787-9, or in Canada in 1864-6; 
but none of them were so imperative, for the Australian 
Colonies were far less seriously menaced by actually 
insistent evils, due to the want of a common national 



THE AUSTRALIAN COMMON]YEALTH 399 

Government, than was the welfare either of the Ameri- 
can States in 1787, or of Switzerland in 1848, or of Ca- 
nada in 1867. In North America, it was the growing 
and indeed hopeless weakness and poverty of the exist- 
ing Confederation, coupled with the barriers to com- 
mercial intercourse, the confusion and depreciation of 
currency, and the financial demoralization of some of 
the States, all of which had just emerged from an ex- 
hausting war, that drew the wisest minds of the nation 
to Philadelphia, induced them to persist in efforts to 
devise a better union, and enabled them to force its ac- 
ceptance upon a people largely reluctant. In Switzer- 
land it was the War of Secession (the so-called Sonder- 
bund war) of 1847 that compelled the victorious party to 
substitute a new and truly federal constitution for the 
league which had proved too weak. In Canada the re- 
lations of the French-speaking and English-speaking 
Provinces (Lower and Upper Canada) had become so 
awkward that constitutional government was being 
practically brought to a standstill, and nothing remained 
but that the leaders of the two parties should devise 
some new system. Australia was in no such straits. 
Her colonies might have continued to go on and prosper, 
as six unconnected self-governing communities. It is 
therefore all the more to the credit of her people that 
they forwent the pleasures of local independence which 
are so dear to vivacious democracies, perceiving that 
although necessity might not dictate a federal union, 
reason recommended it. 

The grounds which were used in argument to urge 
the adoption of the Federal Constitution may be summed 
up as follows : — 

The gain to trade and the general convenience to be 
expected from abolishing the tariffs established on 
the frontiers of each colony. 

The need for a common system of military defence. 

The advantages of a common legislation for the regu- 
lation of railways and the fixing of railway rates. 



400 THE AUSTRALIAN COMMONWEALTH 

The advantages of a common control of the larger 
rivers for the purposes both of navigation and of 
irrigation. 
The need for uniform legislation on a number of com- 
mercial and industrial topics. 
The importance of finding an authority competent to 
provide for old-age pensions and for the settlement 
of labour disputes all over the country. 
The need for uniform provisions against the entrance 
of coloured races (especially Chinese, Malays, and 
Indian coolies). 
The gain to suitors from the establishment of a High 
Court to entertain appeals and avoid the expense 
and delay involved in carrying cases to the Privy 
Council in England. 
The probability that money could be borrowed more 
easily on the credit of an Australian Federation than 
by each colony for itself. 
The stimulus to be given to industry and trade by sub- 
stituting one great community for six smaller ones. 
The possibility of making better arrangements for the 
disposal of the unappropriated lands belonging to 
some of the colonies than could be made by those 
colonies for themselves. 
There was in these arguments something to move 
every class in the community. To the commercial 
classes, the prospect of getting rid of custom-houses and 
of finding a large free market close at hand for all pro- 
ducts was attractive ; as was also that of sweeping away 
the vexation of railway rates planned in the interests of 
each colony rather than for the common benefit of trade. 
Large-minded men, thinkers as well as statesmen, hoped 
that a wider field would bring a loftier spirit into public 
life. The working-classes might expect, not only ad- 
vantages in the way of brisker employment, but the es- 
tablishment of that provision for old age and sickness 
which a Government covering the whole country and 
commanding ample resources could make more effi- 



THE AUSTRALIAN COMMONWEALTH 401 

ciently and on more uniform lines than even the richest 
colony could do. Some of these grounds for union 
measure the distance which the world has travelled since 
1788. Railways are far older than was self-government 
in the oldest Australian colony, far younger than the 
youngest of the original thirteen American States. 
Even so late as 1867, when Canada was confederated, 
no one thought of suggesting that the State should pro- 
vide old-age pensions. 

The opponents of Australian Federation, although 
they came more and more to feel their cause hopeless, 
were an active party, including many influential men. 
Besides denying that the benefits just enumerated would 
be attained, they dwelt upon the additional cost which a 
new Government, superadded to the existing ones, must 
entail. They fanned the jealousies which naturally exist 
between small and large communities, telling the former 
that they would be overborne in voting, and the latter 
that they would suffer in purse ; and they wound up with 
the usual and often legitimate appeals to local sentiment. 

The arguments drawn from considerations of expense 
and from local jealousies were met by a series of in- 
genious compromises and financial devices to which 
both the larger and smaller colonies were persuaded to 
agree, while the love of each community for its own po- 
litical independence was overborne by the rising tide of 
national sentiment. An ambition which aspired to make 
Australia take its place in the world as a great nation, 
mistress of the Southern hemisphere, had been growing 
for some time with the growth of a new generation 
born in the new home, and was powerfully roused by the 
vision of a Federal Government which should resemble 
that of the United States and warn off intruders in the 
Western Pacific, as the American Republic had an- 
nounced by the pen of President Monroe that she would 
do on the North-American Continent. The same na- 
tionally self-assertive spirit and desire for expansion 
which has recently spurred four great European Powers 
26 



402 THE AUSTRALIAN COMMONWEALTH 

into a rivalry for new colonial possessions, and which 
in 1899 made the United States forswear its old-estab- 
lished principles of policy, has been astir in the mind of 
the Australians. It had been stimulated by the example 
of a similar spirit in the mother country, and by the com- 
pliments which the English had now begun to lavish 
upon their colonies. It had gained strength with the 
growth to manhood of a generation born in Australia, 
and nurtured in Australian patriotism. Such a patriot- 
ism, finding no fit scope in devotion to the particular 
colonies, longed for a larger ideal. It supplied the mo- 
tive force needed to create a national union. Without 
it, all the sober reasonings which counselled confedera- 
tion might have failed to prevail. No equally strenuous 
or forward-reaching spirit moved the Canadians in 
1867, nor are the traces of such a spirit conspicuous in 
the American debates of 1787-9. Some men were then 
solicitous for liberty, others for order and good govern- 
ment, but of imperial greatness in the present sense of 
the term little was said. Liberty and peace at home, 
not military strength and domination abroad, were the 
national ideals of those days. 

The history of the Federation movement illustrates 
the truth that a great change is seldom effected in po- 
litics save by the coincidence of two moving forces — 
the prospect of material advantage and the power of 
sentiment. In every community there are many who 
can be moved only by one or other of these two forces, 
and nearly every man responds better to the first if he 
can be warmed by the second. In the American de- , 
bates of 1788-9 feeling was mostly arrayed against the 
proposed federation, though reason was almost entirely 
for it. Reason prevailed, but prevailed with far more 
difficulty than the cause of Federalism, with less cogent 
economic grounds behind it, prevailed in Australia. 

Like America in 1787, Australia was fortunate in hav- 
ing a group of able statesmen, most of whom were also 
lawyers, and so doubly qualified for the task of prepar- 



THE AUSTRALIA!} COMMONWEALTH 403 

ing a constitution. Their learning, their acuteness, and 
their mastery of constitutional principles can best be 
appreciated by any one who will peruse the interesting 
debates in the two Conventions. They used the experi- 
ence of the mother country and of their predecessors in 
the work of federation-making, but they did so in no 
slavish spirit, choosing from the doctrines of England 
and from the rules of America, Switzerland, and Canada 
those which seemed best fitted to the special conditions 
of their own country. And like the founders of the 
American and Canadian Unions, they were not only 
guided by a clear practical sense, but were animated by 
a spirit of reasonable compromise, a spirit which pro- 
mises well for the conduct of government under the in- 
strument which they have framed. 

IV. The Conditions for a Federal 
Commonwealth. 

Before examining the provisions of the Constitution 
which is bringing the hitherto independent colonies into 
one political body, it is well to consider for a moment 
the territory and the inhabitants that are to be thus 
united. 

The total area of Australia is nearly 3,000,000 square 
miles, not much less than that of Europe. Of this a 
comparatively small part is peopled by white men, for 
the interior, as well as vast tracts stretching inland 
from the south-western and north-western coasts, is 
almost rainless, and supplies, even in its better districts, 
nothing more than a scanty growth of shrubs. Much 
of it is lower than the regions towards the coast, and 
parts are but little above sea-level. It has been hitherto 
deemed incapable of supporting human settlement, and 
unfit even for such ranching as is practised on arid 
tracts in western North America and in South Africa. 
Modern science has brought so many unexpected things 
to pass, that this conclusion may prove to have been 



404 THE AUSTRALIAN COMMONWEALTH 

too hasty. Still no growth of population in the interior 
can be looked for corresponding to that which marked 
the development of the United States west of the Alle- 
ghanies in the beginning of the nineteenth century. 

Of the six Australian colonies, one, Tasmania, occu- 
pies an island of its own, fertile and beautiful, but rather 
smaller (26,000 square miles) than Scotland or South 
Carolina. It lies 150 miles from the coast of Victoria. 
Western Australia covers an enormous area (nearly 
1,000,000 square miles, between three and four times 
the size of Texas), and South Australia, which stretches 
right across the Continent to the Gulf of Carpentaria, 
is almost as large (a little over 900,000 square miles). 
Queensland is smaller, with 668,000 square miles ; New 
South Wales, on the other hand, has only 310,000 square 
miles (i.e. is rather larger than Sweden and Norway and 
about the size of California, Oregon and Washington 
put together); Victoria only 87,000 (i.e. is as large as 
Great Britain and a little larger than Idaho). The coun- 
try (including Tasmania) stretches from north to south 
over 32 of latitude (n° S. to 43 S.), a wider range 
than that of the United States (lat. 49 N. to 26 N.). 
There are thus even greater contrasts of climate than 
in the last-named country, for though the Tasmanian 
winters are less cold than those of Montana, the tropi- 
cal heats of North Queensland and the shores of the 
Gulf of Carpentaria exceed any temperature reached in 
Louisiana and Texas. Fortunately, Northern Australia 
is, for its latitude, comparatively free from malarial fe- 
vers. But it is too hot for the out-door labour of white 
men. In these marked physical differences between the 
extremities of the Continent there lie sources whence 
may spring divergences not only of material interests 
but ultimately even of character, divergences compa- 
rable to those which made the Gulf States of the Ameri- 
can Union find themselves drawn apart from the States 
of the North Atlantic and Great Lakes. 

It must also be noted that the great central wilderness 



TEE AUSTRALIAN COMMONWEALTE 405 

cuts off not only the tropical north and north-west, but 
also the more temperate parts of the west from the 
thickly peopled regions of the south-west. Western 
Australia communicates with her Eastern sisters only 
by a long sea voyage 1 . She is almost in the position 
held by California when, before the making of the first 
transcontinental railway, people went from New York 
to San Francisco via Panama. Nor is there much pro- 
spect that settlements will arise here and there in the in- 
tervening desert. 

The population of the Continent, which has now 
reached nearly 4,000,000, is very unequally distributed. 
The three colonies of widest area, Western Australia, 
South Australia, and Queensland, have none of them 
500,000 inhabitants. Tasmania has about 170,000. Two 
others, New South Wales and Victoria, have each 
more than 1,000,000 2 . This disparity ranges them for 
political purposes into two groups, the large ones with 
2,500,000 people in two colonies, and the small ones with 
1,500,000 in four colonies. 

Against these two sets of differences, physical and 
social, which might be expected, to induce an opposition 
of economic and political interests, there is to be placed 
the fact that the Australian colonies are singularly ho- 
mogeneous in population. British North America is 
peopled by a French as well as by an English race, 
British South Africa by a Dutch race as well as an Eng- 
lish. But Australia is purely British. Even the Irish 
and the Scotch, though both races are specially prone to 
emigrate, seem less conspicuous than they are in Ca- 
nada 3 . Australia is to-day almost as purely English as 
Massachusetts, Connecticut, and Virginia were in 1776, 

1 It is four days' voyage from Adelaide, the capital of S. Australia, to Perth, the 
capital of W. Australia. 

2 Two-fifths of the population of Victoria live in Melbourne, one-fourth of the 
population of New South Wales in Sydney. 

3 In 1891, out of that part of the total population of Australia which had been 
born in the United Kingdom, about one-fourth had been born in Ireland and one- 
sixth in Scotland. Of the whole population of Australia, 95 per cent, are of British 
stock. 



406 THE AUSTRALIAN COMMONWEALTH 

and probably more English than were the thirteen origi- 
nal States taken as a whole. In this fact the colonies 
found not only an inducement to a closer union, but a se- 
curity against the occurrence of one of the dangers which 
most frequently threatens the internal concord of a fede- 
ration. Race antagonisms have troubled not only Ca- 
nada and South Africa but the United Kingdom itself, 
and they now constitute the gravest of the perils that sur- 
round the Austro-Hungarian monarchy. 

Among the other favouring conditions may be enu- 
merated the use of one language only (whereas in Ca- 
nada and in South Africa two are spoken), the existence 
of one system of law, the experience of the same form 
of political institutions, a form modelled on that which 
the venerable traditions of the mother country have en- 
deared to Englishmen in all parts of the world. It has 
also been a piece of good fortune that religion has not 
interposed any grounds for jealousy or division. The 
population of Australia is divided among various Chris- 
tian denominations very much as the population of Eng- 
land is, and the chief difference between the old and the 
new country lies in the greater friendliness to one an- 
other of various communions which exists in the new 
country, a happy result due partly to the absence of any 
State Establishment of religion, and partly to that sense 
of social equality which is strong enough to condemn 
any attempt on the part of one religious body to claim 
social superiority over the others. 

Finally, there is the unique position which Australia 
occupies. She has a perfect natural frontier, because 
she is surrounded by the sea, an island continent, so 
far removed from all other civilized nations that she is 
not likely to be either threatened by their attacks or 
entangled in their alliances. The United States had, 
when its career began, British possessions on the north, 
French and Spanish on the south. But the tropical 
islands which Holland, Germany and France claim as 
theirs to the north and east of the Australian coasts are 



THE AUSTRALIAN COMMONWEALTH 407 

cut off by a wide stretch of ocean 1 . They are not now, 
and are not likely at any time we can foresee, to con- 
tain a white population capable of disturbing the repose 
of Australia. Such a country seems made for one na- 
tion, though the fact that its settled regions lie scattered 
round a vast central wilderness suggests that it is better 
fitted for a federation than for a government of the uni- 
fied type. But, on the other hand, this very remoteness 
might, in removing the force of external pressure, have 
weakened the sense of need for a federal union had there 
not existed that homogeneity of race and that aspiring 
national sentiment to which I have adverted. 

Compare these conditions with those of the three 
other Federations. The thirteen colonies which have 
grown into the present forty-five States of the American 
Union lay, continuous with one another, along the coast 
of the Atlantic. England held Canada to the north of 
them, France held the Mississippi Valley to the west of 
them, and, still further to the west, Spain held the coasts 
of the Pacific. They had at that time no natural boun- 
daries on land ; and the forces that drew them together 
were local contiguity, race unity, and above all, the sense 
that they must combine to protect themselves against 
powerful neighbours as well as against the evils which 
had become so painfully evident in the governments of 
the several States. Nature prescribed union, though 
few dreamt that Nature meant that union to cover the 
whole central belt of a Continent. In the case of Ca- 
nada, Nature spoke with a more doubtful voice. She 
might rather have appeared to suggest that this long 
and narrow strip of habitable but only partially inhabited 
land, stretching from the Gulf of St. Lawrence to Puget 
Sound, should either all of it unite with its mighty neigh- 
bour to the south, or should form three or four separate 
groups, separated by intervening wildernesses. Poli- 
tical feelings however, compounded of attachment to 
Britain and a proud resolve not to be merged in a rival 

1 The nearest point of Dutch New Guinea is about 150 miles from Australia. 



408 TEE AUSTRALIAN COMMONWEALTE 

power which had done nothing to conciliate them, led 
the Canadians to form a confederation of their own, 
which Nature has blessed in this point at least, that its 
territories are so similar in climate and in conditions for 
industrial growth that few economic antagonisms seem 
likely to arise among them. Switzerland, however, is 
the most remarkable case of a Federation formed by 
historical causes in the very teeth, as it might seem, 
of ethnological obstacles. Three races, speaking three 
languages, have been so squeezed together by formida- 
ble neighbours as to have grown into one. The help of 
Nature has however been given in providing them with 
mountain fastnesses from which the armies of those 
neighbours could be resisted; and the physical charac- 
ter of the country has joined with the traditions of 
a splendid warlike heroism in creating a patriotism 
perhaps more intense than any other in the modern 
world. 

V. The Constitution as a Federal Instrument. 

In examining any Federal Constitution, it is con- 
venient to consider the system it creates first as a Fede- 
ration, i.e. a contrivance for holding minor communi- 
ties together in a greater one ; and then as a Frame of 
Government, composed of organs for discharging the 
various functions of administration. Although the for- 
mer of these influences the latter, because the federal 
character of a State prescribes to some extent the cha- 
racter of that State's governmental machinery, it con- 
duces to clearness to deal with these two aspects sepa- 
ratefy. Accordingly I begin with the federal aspect of 
the Constitution. 

Federations are of two kinds. In some, the supreme 
power of the Central Government acts upon the com- 
munities which make it up only as communities. In 
others this power acts directly, not only upon the com- 
ponent communities, but also upon the individual citi- 



THE AUSTRALIAN COMMONWEALTH 409 

zens as being citizens of the Nation no less than of the 
several communities. The former kind of Federation 
may be described as really a mere League of States ; the 
latter kind is a National as well as a Federal State. 

The Australian Federation is of this latter type. So 
are the United States, the Swiss Confederation, and the 
Canadian Federation. It was however to the former 
type that both the United States before 1788 and Swit- 
zerland before 1848 belonged. So Germany was a mere 
League of States before 1866, but has been a National 
as well as Federal State since 1866 and 1871. 

The essential feature of this latter type, with which 
alone we are here henceforth concerned, consists in the 
existence above every individual citizen of two authori- 
ties, that of the State, or Canton (as in Switzerland) or 
Province (as in Canada), to which he belongs, and that 
of the Nation, which includes all the States, and operates 
with equal force upon all their citizens alike. Thus each 
citizen has an allegiance which is double, being due both 
to his own particular State and to the Nation. He lives 
under two sets of laws, the laws of his State and the laws 
of the Nation. He obeys two sets of officials, those of 
his State and those of the Nation, and pays two sets of 
taxes, besides whatever local taxes or rates his city or 
county may impose. 

Accordingly the character of each and every Federa- 
tion depends upon the distribution of powers between 
the Nation and the several States, since some powers 
must be allotted to the larger, some to the smaller 
entity. With regard to certain powers there can be no 
doubt. The navy, for instance, the post-office, the con- 
trol of all foreign relations, must obviously be assigned 
to the National Government, together with the levying 
of customs duties at the frontiers and the raising of reve- 
nue for the purposes above mentioned. On the other 
hand, matters of an evidently local nature, such as police, 
prisons and asylums, the system of municipal or county 
administration, with the power of taxing for these pur- 



410 THE AUSTRALIAN COMMONWEALTH 

poses, will be allotted to the State Governments. But 
between these two sets there lies a large field of legisla- 
tion and administration which may, according to the 
circumstances of each particular country and the wishes 
of the people who enact their constitution, be granted 
either to the Nation or to the States. The law of mar- 
riage and divorce, for instance 1 , criminal law 1 , bank- 
ruptcy, the traffic in intoxicating liquors 2 , the regulation 
of railways 2 , the provision of schools or universities 3 , 
are all matters which have both a national and a local 
significance, and may be entrusted either to the National 
legislature or to the State legislatures according as one 
or other aspect of them predominates in the mind of the 
people. 

VI. Distribution of Powers between Nation 
and States. 

Now the fundamental question in the distribution of 
powers between the Nation and the States is this — To 
which authority does the unallotted residue of powers 
belong? It has been found that no distribution, how- 
ever careful, can exhaust beforehand all the powers that 
a legislature or an executive may possibly have to exer- 
cise, and it therefore becomes essential to provide, when- 
ever a power not specifically mentioned needs to be ex- 
ercised, whether it should be deemed to be rightfully 
exerciseable by the National or by the State autho- 
rity. In other words, which of these authorities is 
to be deemed general legatee of any undistributed 
residue? 

This question has been answered differently by dif- 
ferent Federations. The United States and Switzerland 
leave to the States (to which they had belonged pre- 

1 In the U. S. A. a State, in Canada a Federal matter. 

2 In Switzerland a Federal matter, in the U. S. A. partly a Federal, partly a 
State matter. 

3 In the U. S. A. and Germany a State matter, in Switzerland and Canada partly 
a Federal matter.* 



TEE AUSTRALIAN COMMONWEALTH 411 

viously) the undistributed powers. Canada (whose Pro- 
vinces were in a different position) bestows them upon 
the National (Dominion) Government 1 . The question 
is the more important, because it creates in all sorts of 
doubtful matters a presumption in favour of the Na- 
tional Government or the State Governments, as the 
case may be. And it is specially important at the mo- 
ment of creating a new Federation, because one of the 
difficulties always then experienced is to induce the 
States to resign powers they have hitherto enjoyed. 
Hence it reassures and comforts them to have the resi- 
due of powers not specifically distributed left still in 
their hands. 

The Australians have followed the example of the 
United States and Switzerland rather than that of Ca- 
nada; and they have done so for the sake of appeasing 
the local sentiment of the several colonies, and especially 
of the smaller colonies, who naturally feared that, as 
they would have less weight than their larger neighbours 
in the national legislature, they would be in more danger 
of being subjected to laws which their local opinion did 
not approve. Section 107 provides that — 

' Every power of the Parliament of a Colony which 
has become or becomes a State shall, unless it is by this 
Constitution exclusively vested in the Parliament of the 
Commonwealth or withdrawn from the Parliament of 
the State, continue as at the establishment of the Com- 
monwealth, or as at the admission or establishment of 
the State 2 , as the case may be.' 

Comparatively few powers of legislation are ' exclu- 
sively vested ' in the Commonwealth Parliament ; so that 
upon subjects other than these the State Parliaments 
retain for the present their previous power to legislate. 

1 See[U. S. A. Constitution, Amendment X : Constitution of Swiss Confederation, 
Art. 3 : British North American Act (1867), sect. 91. 

2 These words are used to cover the case of the creation and admission of future 
States. 

The name ' State,' which the Australians have substituted for ' Colonies,' is sig- 
nificant. It imports a slightly greater independence and has a more imposing sound 
than the Canadian term ' Province.' 



412 THE AUSTRALIAN COMMONWEALTH 

But as it is also provided that all Acts of the Com- 
monwealth Parliament, within the range of the powers 
granted, shall override laws of any State Parliament, 
such laws as the latter may pass upon subjects open 
to both legislatures are left at the mercy of the Com- 
monwealth Parliament, which may, as and when it finds 
time or occasion, pass Acts extinguishing, or modifying 
the effect of, those enacted by the States. 

Now the range of powers granted to the National or 
Commonwealth Parliament is very wide, wider than that 
of Congress or of the Swiss National Assembly, or even 
of the Dominion Parliament in Canada. I need not enu- 
merate the powers granted, forty-two in number, for 
they will be found in sects. 52 and 53 of the Australian 
Constitution. Among them are the following, which are 
not specifically given to, and nearly all of which are not 
even claimed by, the United States Congress : — Powers 
to take over State railways, and to construct and extend 
railways (with the consent of the State in which the 
railway lies), to control telegraphs and telephones and 
also trading and financial corporations, to take over 
State debts 1 , to legislate on marriage and divorce, on 
bills of exchange and promissory notes, on invalid and 
old-age pensions, on arbitration and conciliation in trade 
disputes (where these extend beyond one State), on 
bounties on the production or export of goods, on the 
service and execution throughout the Commonwealth 
of the civil and criminal process and judgements of the 
State Courts. If these powers come to be all put in force 
they may leave for State action a narrower and less in- 
teresting field than it enjoys in the United States, where 
nevertheless the State legislatures are bodies of no great 
account, seldom enlisting the services of men of first- 
rate capacity. 

1 Canada directs the Dominion to take over the Provincial debts existing at the 
time of the Union. In the U. S. A. the war debts of the States were taken over by 
the first Congress of the Union. 



THE AUSTRALIAN COMMONWEALTH 413 

VII. Constitutional Position of the Austra- 
lian States. 

The Australian Constitution, like that of the United 
States, assumes the States to be already organized com- 
munities, and contains nothing regarding their consti- 
tutions. The case of Canada was different, because there 
the previous government of the Upper and Lower Pro- 
vinces, which had been one, had to be cut in two, and ar- 
rangements made for duly constituting the two halves. 
But in the case of Australia, the pre-existing constitu- 
tions of the Colonies, granted by the Imperial Govern- 
ment at various times, go on unchanged, subject only 
to the supersession of some of their functions by the 
Commonwealth, and to one or two specifically men- 
tioned restrictions. That these restrictions are compa- 
ratively few may be partly ascribed to that aversion 
which the English everywhere show to this kind of safe- 
guard against the misuse of legislature power. The 
omnipotence of the British Parliament seems to have 
fostered the notion that all Parliaments ought to be free 
to do wrong as well as to do right. The only things from 
which a State is disabled are the keeping of a naval or 
military force (except with the consent of the Common- 
wealth Parliament), coining money, and making any- 
thing but gold and silver coin legal tender 1 . A State 
is not, as are the American States, forbidden to grant 
titles of nobility, or to pass any ex post facto law or law 
' impairing the obligation of contracts.' That no such 
prohibitions exist in Canada may be ascribed to the fact 
that in Canada the National or Dominion Government 
has the right of vetoing laws passed by provincial 
legislatures, so that improper legislation can be in this 
way checked. The power is not often exercised in Ca- 
nada, but when exercised has sometimes led to friction. 
This plan, however, is neither so respectful to the Pro- 

1 See sections 114 and 115 of Constitution, and compare Art. I. sect. 10 of Consti- 
tution of U. S. A. 



414 THE AUSTRALIAN COMMONWEALTH 

vinces nor so conformable to general principles as is 
the American plan, which leaves the States subject only 
to the restrictions imposed by the Constitution, restric- 
tions which ipso iure annul a law attempting to transgress 
them. And the Australians have wisely followed the 
American rather than the Canadian precedent. The 
Australians have, to be sure, in reserve a power to 
which nothing similar exists in America, viz. the right 
of the British Crown at home to veto legislation. Rarely 
as this right is put in force, it might conceivably be used 
at the instance of the National Government to avert an 
undesirable conflict between State statutes and National 
statutes. Note further that each Australian State is 
left as free to amend its own constitution as it was 
before, subject of course to the veto of the British 
Crown, but to no interference by the Commonwealth, 
whereas in Canada acts of the Provincial legislatures 
amending their constitutions are subject to the veto 
of the Dominion Government as representing the 
Crown. 

The omission of any provision similar to the famous 
and much litigated clause which debars an American 
State legislature from passing any law impairing the 
obligation of contracts is especially noteworthy. That 
clause, introduced by the Philadelphia Convention in 
order to check the tendency of some reckless States to 
get rid of their debts, produced in course of time un- 
expectedly far-reaching results, from some of which 
American legislatures and courts have made ingenious 
attempts to escape. It has indeed been thought that 
several subsequent decisions of the Supreme Court are 
not easily reconcileable with the famous judgement in 
the Dartmouth College Case (a.d. 1818), in which the 
full effect of this clause was for the first time displayed. 
That effect has been to fetter legislation in ways which 
are found so inconvenient in practice that they are 
acquiesced in only because many State legislatures are 
in the United States objects of popular distrust. No 



THE AUSTRALIAN COMMONWEALTH 415 

corresponding distrust seems to be felt in the British 
colonies, and therefore the Australians have not deemed 
any such prohibition needful, following the example of 
the British House of Commons, which in 1893 rejected 
a similar clause when moved as an amendment to the 
Irish Home Rule Bill of that year. 

In another point the Australian States have been 
treated with respect. In each of them the nominal ex- 
ecutive head has hitherto been a Governor appointed 
by the British Crown. This was the case in Canada 
prior to 1867: but when the Canadian Federation was 
formed, the appointment of the Governors of the several 
provinces was entrusted to the Governor-General of the 
Dominion, that is to say, to the Dominion Cabinet by 
whose advice the Governor-General, being a sort of 
constitutional monarch, is guided. In practice, there- 
fore, these governorships have become rewards be- 
stowed upon leading party politicians. The Austra- 
lians wisely (as most Englishmen will think) avoided 
this plan. Neither did they adopt the American method 
of letting the people of each State elect the Governor, 
a method unsuited to government on the Cabinet sys- 
tem, because, as the State Governor is under that system 
only a nominal head of the Executive (the Cabinet being 
the real Executive), there was no good reason for set- 
ting the people to choose him, and good reasons against 
doing so, inasmuch as popular elections are invariably 
fought on party lines. Accordingly the Australians have 
preferred to let him continue to be appointed by the 
Home Government, and to allow him to communicate 
directly with the Colonial Office in London. His Mini- 
sters are indeed described in the Constitution (sect. 44) 
as being ' the Queen's Ministers.' 



416 TEE AUSTRALIAN COMMONWEALTH 

VIII. Differences from the United States 
and Canadian Federations. 

Four other remarkable divergences, from both the 
American and the Canadian Federal systems, remain 
to be mentioned. 

One relates to the judiciary. In the United States 
there is a complete system of Federal Courts ramify- 
ing all over the Union and exercising exclusive juris- 
diction in all cases arising under Federal statutes, as 
well as in a number of other matters specified in Art. 
III. sect. 2 of the Constitution. But the State Courts 
remain quite independent in all State matters, and de- 
termine the interpretation of the State Constitutions 
and of all State statutes, nor does any appeal lie from 
them to the Federal Courts. In Canada this was not 
thought necessary, so there the same set of Courts 
deals with questions arising under Federal statutes and 
with those arising under Provincial Statutes, and the 
Supreme Court of Canada receives appeals from all other 
Courts. This is less conformable to theory than the 
United States plan, but does not seem to have worked 
ill. The danger that Courts sitting in the Provinces 
would, under the influence of local feeling, pervert Fede- 
ral law was not serious in Canada (though a similar 
danger was feared in the United States in 1787), and 
indeed all the Canadian judges are appointed by the Do- 
minion Government, a further illustration of the pre- 
ponderance which the Nation has over the Provinces. 
The Australians have taken a middle course. They have 
established a Federal Supreme Court, to be called ' The 
High Court of Australia,' and have taken power for their 
Parliament to create other Federal Courts. So far, they 
follow the United States precedent. But they have 
given power to the Commonwealth Parliament to invest 
State Courts with federal jurisdiction, thereby allowing 
those Courts to be, as in Canada, both State and Federal. 
And they have also allowed an appeal from all State 



THE AUSTRALIAN COMMONWEALTH 417 

Courts to the Federal High Court. By this plan the 
States are more directly connected with and subordinate 
to the National Government than they are in the United 
States. The Australian scheme has one great incidental 
advantage. In the United States the law of different 
States may and does differ, not only in respect of the 
difference between the statutes of one and the statutes 
of another, but also in respect of questions of common 
law untouched by statutes. The Supreme Court of 
Massachusetts may, for instance, take a different view 
of what constitutes fraud at common law from that taken 
by the Supreme Court of Pennsylvania, and there is no 
Court of Appeal above both these Courts to bring their 
views into accord. This has not happened to any great 
extent in Australia, because the British Privy Council 
has entertained appeals from all its Courts, and it will 
happen still less in future, because the Federal High 
Court will be close at hand to settle questions on 
which the Courts of different States may have been in 
disaccord. 

A second point shows how much less powerful the 
sentiment of State sovereignty has been in Australia 
than it was in the United States. By an amend- 
ment (xi) to the American Constitution made in 1798 
it is expressly declared that no State can be sued by 
a private plaintiff. But Australia expressly grants 
jurisdiction in such cases to its Federal High Court 
(sect. 75). 

A third point is the curious and novel power given 
to a State of referring matters to the Commonwealth 
Parliament, and to that Parliament of thereupon legis- 
lating on such matters (sect. 51 (xxxvii)). Under this 
provision (which is not to be found in the Canadian Con- 
stitution *) there is no department of State law where- 
with the National legislature may not be rendered com- 
petent to deal. It may be usefully employed to secure 
uniformity of legislation over all Australia on a number 

1 But see section 94 of the Canadian Constitution. 
27 



418 THE AUSTRALIAN COMMONWEALTH 

of subjects not within the specifically allotted field of the 
Commonwealth Parliament. 

Finally, the Commonwealth Parliament may grant 
financial assistance to any State, and may take over the 
whole or a part of its debts as existing at the establish- 
ment of the Commonwealth 1 . Provisions such as these 
imply, or will involve if put in practice, a relation be- 
tween the National Government and the States closer 
than that which exists in America. 

To complete this account of the relation of the Na- 
tion to the States, let it be noted that a State may sur- 
render any part of its territory to the Commonwealth, 
and that the Commonwealth is bound to protect each 
State against invasion or, on the application of the Ex- 
ecutive of the State, against domestic violence 2 . This 
latter provision is drawn from the United States con- 
stitution 3 , though in America it is from the State legisla- 
ture, if then in session, that the application for protec- 
tion ought to come. Australia is right in her variation, 
because in her States the Legislature acts through the 
Executive. Neither provision occurs in the Constitu- 
tion of Canada, which assigns military and naval defence 
exclusively to the Dominion Government, and makes 
itself responsible for the maintenance of order every- 
where. In Switzerland the management of the army, 
in which all citizens are bound to serve, is divided be- 
tween Cantons and Confederation, the supreme control 
remaining with the latter (Artt. 18-22). The Confedera- 
tion is bound to protect a Canton against invasion and 
disorders, and may even itself intervene if the Executive 
of the Canton cannot ask it on its own motion (Artt. 16 
and 17). Australia, as we have seen, allows the States to 
maintain a force with the consent of the Commonwealth; 
and this is permitted by the American Constitution also. 

1 Sect. 105. 2 Sect. 119. 3 Art. II. sect. 3, and Art. IV. sect. 4. 



THE AUSTRALIAN COMMONWEALTH 419 



IX. The Constitution as a Frame of National 
Government. 

We may now pass on to consider the National Gov- 
ernment, the construction whereof occupies by far the 
greater part of the Constitution, which, while it left the 
States pretty much as they were, had here to build up 
a new system from the ground. 

The first point to be examined relates to the limita- 
tions imposed on the National Government as against 
the citizens generally, since I have already dealt with the 
limitations on its powers as against the States. Here a 
remarkable divergence from the American Constitution 
is disclosed. When that instrument was enacted, the 
keenest suspicion and jealousy was felt of the action of 
the Government to be established under it. It was 
feared that Congress might become an illiberal oligarchy 
and the President a new George the Third. Accordingly 
great pains were taken to debar Congress from doing 
anything which could infringe the primordial human 
rights of the citizen. Some restrictions are contained 
in the original Constitution : others fill the first nine 
amendments which were passed two or three years later, 
as a part of the arrangements by which the acceptance 
of the Constitution was secured. And down till our own 
time every State Constitution in America has continued 
to contain a similar ' Bill of Rights ' for. the protection 
of the citizens against abuse of legislative power. The 
English, however, have completely forgotten these old 
suspicions, which, when they did exist, attached to the 
Crown and not to the Legislature. So when Englishmen 
in Canada or Australia enact new Constitutions, they 
take no heed of such matters, and make their legislature 
as like the omnipotent Parliament of Britain as they 
can. The Canadian Constitution leaves the Dominion 
Parliament unfettered save by the direction (sect. 54) 
that money shall not be appropriated to any purpose 



420 THE AUSTRALIAN COMMONWEALTH 

that has not been recommended to the House of Com- 
mons by the Executive, a direction embodying English 
practice, and now adopted by Australia also. And the 
Australian Constitution contains but one provision 
which recalls the old-fashioned Bill of Rights, viz. that 
which forbids the Commonwealth to ' make any law for 
establishing any religion or for imposing any religious 
observance or for prohibiting the free exercise of any 
religion.' The Swiss Constitution, influenced by French 
and American models, is in this respect more archaic, 
for it imposes a series of disabilities on its Legislature 
in the interest of individual freedom (sectt. 39, 49, 54-59). 
This diversity of attitude between the English on the 
one hand and both the Americans and the Swiss on the 
other is a curious instance of the way in which usage and 
tradition mould a nation's mind. Parliament was for so 
long a time the protector of Englishmen against an arbi- 
trary Executive that they did not form the habit of tak- 
ing precautions against the abuse of the powers of the 
Legislature ; and their struggles for a fuller freedom 
took the form of making Parliament a more truly popu- 
lar and representative body, not that of restricting its 
authority. 

The point just examined is one which arises in all 
Rigid Constitutions, whether Federal or Unitary. But 
the next point is one with which only Federations are 
concerned ; and it is one in which all the great Federa- 
tions agreee. All have adopted the same method of 
providing both for the predominance of the majority of 
the people considered as one Nation, and for the main- 
tenance of the rights of the States considered as distinct 
communities. The Americans invented this method : 
the Swiss, the Canadians, the Germans, and now the 
Australians, have imitated them. This method is to 
divide the Legislature into two Houses, using one to re- 
present the whole people on the basis of numbers, and 
using the other to represent the several States on the 
basis (except in Germany) of their equality, as autono- 



TEE AUSTRALIAN COMMONWEALTH 421 

mous communities. It was this device that made Fede- 
ration possible in the United States, for the smaller 
States would not have foregone their independence in 
reliance upon any weaker guarantee. 

X. The Legislature. 

The Australian scheme provides (sectt. 7-23) for an 
Upper House or Senate of thirty-six members, six from 
each State, and a House of Representatives (sectt. 24-40) 
of seventy-five members, elected on a basis of popula- 
tion, so that forty-nine members will come from the 
two large States, New South Wales and Victoria, and 
twenty-six from the four small States. No Original 
State is ever to have less than five. 

The equal representation of the six Original States is 
always to be maintained, but the number of Senators 
may be increased, and when new States come to be 
formed, the Parliament may allot to them such number 
of Senators as it thinks fit. Senators sit for six years, 
and do not all retire at the same time. These features 
are taken from the Constitution of the United States, 
which, as already observed, has been a model for subse- 
quent Federal Upper Houses. But there are remark- 
able variations in the Australian scheme. 

1. In the United States each newly-created State re- 
ceives as a matter of right its two Senators. In Austra- 
lia the Commonwealth may allot such number as it 
thinks fit. 

2. In the United States one-third of the Senate retires 
every two years. In Australia one-half retires every 
three years. 

3. In the United States the President of the Senate 
is the Vice-President of the United States, chosen by 
the people 1 . In Australia, the Senate is to choose its 
own President. 

1 I.e. practically by the people, though formally by a body of electors elected 
for that purpose. 



422 THE AUSTRALIAN COMMONWEALTH 

4. In the United States the quorum is one more than 
a half of the total number ; in Australia one-third of the 
total number. 

5. In the United States the Legislatures of the several 
States elect the Senators. In Australia the Senators 
are elected by the people of the State. 

This last point is one of great interest. Tocqueville, 
writing in 1832, attributed (erroneously, as the sequel 
has shown) the excellence of the American Senate to 
the method of election by the State Legislatures 1 . Since 
his days the American Senate has declined; and so far 
from this mode of election having tended to sustain its 
character, the general, though not unanimous, opinion 
of the wise in America deems the Senate to be injured 
by it, and desires a change to the method of election by 
direct popular vote. It was partly because the Austra- 
lian Convention had become aware of this tendency of 
American opinion that they rejected the existing Ameri- 
can plan ; nor is it impossible that the Americans them- 
selves may alter their system, which gives greater oppor- 
tunities for intrigue and the use of money than popular 
election would be likely to afford. In Australia, the 
Senators are in the first instance to be elected by the 
people, each State voting as one electorate, but this 
may be altered (e.g. to a system of district elections) by 
the Parliament of the Commonwealth, or failing its 
action, by the Parliament of a State. It will be interest- 
ing to see what experiments are tried and how they 
work. District voting may give different results from 
a general State vote, and a party for the moment domi- 
nant may choose the plan that best suits it. 

6. In the United States the Senate is an undying body, 
perpetually renewed by fresh elections, never losing 
more than one-third of its members at any one time. 
In Australia the Senate may be dissolved in case a 
deadlock should arise between it and the House of 
Representatives. 

1 See as to this, Essay VI, p. 336 and p. 352. 



THE AUSTRALIAN COMMONWEALTH 423 

The Senate is the sheet-anchor of the four small 
States. Commanding a majority in it, they have con- 
sented to acquiesce in the great preponderance which 
their two larger neighbours possess in the House of 
Representatives. The numbers of the latter House are 
to be always as nearly as practicable double those of the 
Senate, a point whose importance will presently appear. 

The House is to continue for three years (subject of 
course to dissolution), a term intermediate, though in- 
clining in the democratic direction, between the two 
years of the American Congress and the seven (practi- 
cally six) years of the British House of Commons. The 
Canadian term is five years. Until the Commonwealth 
Parliament otherwise provides, the electoral suffrage 
is to be (as in the United States) the suffrage prescribed 
by State law for the election of members of the more 
numerous State House, and it is expressly provided, 
doubtless with a view to the fact that women's suffrage 
already exists in two colonies, that no law shall prevent 
a State voter from voting at Commonwealth elections. 
So far from securing, as does the United States Consti- 
tution, that no person shall be excluded on the ground 
of race from the suffrage 1 , Australia has expressly pro- 
vided that persons belonging to a particular race may 
be excluded, for she declares (sect. 25) that in such case 
the excluded race is not to be reckoned among the popu- 
lation of the State for the purposes of an allotment 
of representatives. Plural voting is forbidden. The 
quorum of members is a mean between the inconve- 
niently large quorum (one-half) of the American, and the 
very small one (forty) of the British House. The seat of 
any Senator or member of the House becomes ipso facto 
vacant if he fails (without permission) to attend any 
session for two continuous months. No person having 
any pecuniary interest in any agreement with the public 
service (except as member of an incorporated company 
of at least twenty-five persons), or holding any office of 

1 See Amendment XV to the Constitution. 



424 THE AUSTRALIAN COMMONWEALTH 

profit under the Crown, can sit in either House, unless 
he be a Minister either of the Commonwealth or of a 
State. The exception is noteworthy, not only because 
it is framed with a view to the establishment of Cabinet 
Government, but also because it implies that a man may, 
contrary to American and Canadian usage, be at the 
same time both an executive official of a State and also 
a member of the Federal Legislature. It would appear 
that women are eligible to membership of either House. 
Every Senator and Representative is to receive a salary, 
fixed for the present at £400 ($2,000) a year. 

XI. The Executive. 

The Executive is to consist of the Governor-General 
and the Ministers. To the great convenience of the 
Australian people, the head of the Executive does not 
need to be elected either by popular vote (as in the 
United States) or by the Chambers, as in France and 
Switzerland. He is nominated by the British Crown, 
and holds office so long as the Crown pleases, receiving 
a salary fixed, for the present, at £ 10,000 ($50,000) a 
year (exactly the salary of the American President). He 
has an Executive Council, modelled on the British Privy 
Council (though the name Privy Council is not used 
as it is in the Canadian Constitution), and from it he 
chooses a number of Ministers (fixed for the present at 
seven) who are to administer the several departments 
of the public service. They must be members of one or 
other House of Parliament — a remarkable provision, for 
though this is a British practice, that practice has never 
been embodied in any positive rule. As the Governor- 
General is only a constitutional figure-head, these Mini- 
sters will in fact constitute the ruling executive of the 
Commonwealth. 



THE AUSTRALIAN COMMONWEALTH 425 

XII. The Judiciary. 

The Judiciary is to consist in the first instance of a 
Federal High Court (containing a Chief Justice and at 
least two other judges) capable of exercising both origi- 
nal jurisdiction in certain sets of cases, and also appel- 
late jurisdiction not only from single Federal Judges and 
inferior Federal Courts, but also from the Supreme 
Courts of the States. Power is taken both to establish 
lower Federal Courts and to invest State Courts with 
federal jurisdiction. But besides this Judiciary proper, 
there is created a second Court for dealing with cases 
relating to trade and commerce, under the name of the 
Inter-State Commission (sect. 101). This remarkable 
and very important institution has doubtless been sug- 
gested by the United States Inter-State Commerce Com- 
mission created by Congress some eighteen years ago 
in order to deal with railway and water traffic between 
the States. Its functions will be half-administrative, 
half-judicial, and in questions of pure law an appeal 
will lie from it to the High Court, while a guarantee 
for its independence is found in the clause which de- 
clares that its members shall not be removed during 
their seven years' term of office. All Federal Judges 
are to be appointed by the Governor-General, that is 
to say, by the Executive Ministry. All trials (on in- 
dictment) for any offence against the laws of the Com- 
monwealth shall be by jury, and held in the State where 
the alleged offence was committed. The judicial estab- 
lishments of the States remain unaffected, and the 
judges thereof will continue to be appointed by the 
State Executives. 

In determining the functions of the High Court there 
arose an important question which seemed for a moment 
to threaten the whole scheme of Federation. The draft 
Constitution which the Convention had prepared and 
which the people had approved by their vote provided 
that questions arising on the interpretation of the Con- 



426 THE AUSTRALIAN COMMONWEALTH 

stitution as to the respective limits of the powers of the 
Commonwealth and of the States, or as to the respec- 
tive limits of the constitutional powers of any two or 
more States, should be adjudicated upon by the High 
Court of the Commonwealth, and that no appeal should 
lie from its decision to the Queen in Council (i.e. to the 
Judicial Committee of the Privy Council in England, 
which is the Supreme Court of Appeal from the British 
Colonies and India), ' unless the public interest of some 
part of Her Majesty's dominions, other than the Com- 
monwealth or a State, are involved.' When the draft 
reached England to be embodied in a Bill, the British 
Government took exception to this provision as tending 
to weaken the tie between the mother country and the 
colonies. There were many in England who thought 
that it was not in the interest of Australia herself that 
she should lose, in questions which might involve poli- 
tical feeling and be complicated with party issues, the 
benefit of having a determination of such questions by 
an authority absolutely impartial and unconnected with 
her domestic interests and passions. How much better 
(they argued) would it have been for the United States 
at some critical moments could they have had constitu- 
tional disputes adjudicated on by a tribunal above all 
suspicion of sectional or party bias, since it would have 
represented the pure essence of legal wisdom, an unim- 
peachable devotion to legal truth ! 

To this the Australians replied that the experience 
of the United States had shown that in constitutional 
questions it was sometimes right and necessary to have 
regard to the actual conditions and needs of the nation ; 
that constitutional questions were in so far political that 
where legal considerations were nearly balanced, the 
view ought to be preferred which an enlightened regard 
for the welfare of the nation suggested ; that a Court 
sitting in England and knowing little of Australia would 
be unable to appreciate all the bearings of a constitu- 
tional question, and might, in taking a purely technical 



THE AUSTRALIAN COMMONWEALTH 427 

and possibly too literal a view of the Constitution, give 
to the Constitution a rigidity which would check its 
legitimate expansion and aggravate internal strife. 
Australia must — so they pursued — be mistress of her 
own destinies, and as it is she that had framed and pro- 
cured the enactment of this Constitution, so by her 
ought the responsibility to be borne of working it on 
its judicial as well as its executive and legislative side. 
Not only was this better for Australia herself, but it 
would be more conducive to the maintenance of the 
connexion between the Commonwealth and the mother 
country. 

After some wavering, the British Government, per- 
ceiving the risk of offending Australian sentiment, gave 
way. They dropped in Committee of the House of Com- 
mons the alteration which they had introduced into 
the Australian draft, substituting for it an amendment 
which, while slightly varying the original terms of the 
draft, practically conceded the point for which the Au- 
stralian Delegates, sent to England to assist in passing 
the measure, had contended. The Act as passed pro- 
vides that no appeal shall lie to the Crown in Council 
upon the constitutional questions above-mentioned un- 
less the High Court itself shall, being satisfied that the 
question is one which ought to be determined by the 
Privy Council, certify to that effect. In all other such 
cases its judgement will be final. 

Appeals to the Privy Council in questions other than 
constitutional will continue to lie from the Supreme 
Courts of the States (with the alternative of an appeal 
to the High Court) and from the High Court itself, when 
special leave is given by the Privy Council. The Com- 
monwealth Parliament may limit the matters in which 
such leave may be asked, but the laws imposing such 
limitations are to be reserved for the pleasure of the 
Crown. 

The scheme of judicature above outlined follows in 
the main the model contained in the American Consti- 



428 THE AUSTRALIAN COMMONWEALTH 

tution. It does not draw the line between State and 
Federal matters and courts so sharply, for appeals are 
to lie from State Courts in all matters alike, and State 
Courts may receive jurisdiction in Federal matters. On 
the other hand, it is more conformable to principle than 
either the Canadian plan, which provides no Federal 
Courts save the Supreme Court and gives the appoint- 
ment of all judges alike to the Dominion Government, 
or the Swiss plan, which refers questions of conflict be- 
tween the Nation and the Cantons, or as to the constitu- 
tionality of Federal laws, not to the Judiciary at all, but 
to the Federal Legislature. Broadly speaking, the Au- 
stralian High Court will have to fill such a place and dis- 
charge such functions as have been filled and discharged 
in America by that exalted tribunal which Chief Justice 
John Marshall and other great legal luminaries have 
made illustrious. In working out the provisions of the 
Constitution by an expansive interpretation, cautious 
but large-minded, it may render to Australia services 
not unworthy to be compared with those which America 
has gratefully recognized. 

XIII. Working of the Frame of Government.. 
The Cabinet. 

Now let us see how this Frame of Government, which 
I have briefly outlined in its salient features, is intended 
to work. 

Its essence lies in a matter which is not indicated by 
any express provision, the dependence of the Executive 
upon the Legislature. Herein it differs fundamentally 
from the American and Swiss systems. It reproduces 
the English system of what is called Cabinet or Respon- 
sible Government ; that is to say, a Government in which 
the Executive instead of being, as in America, an inde- 
pendent authority, directly created by the people and 
amenable to the people only, is created by and respon- 
sible to the Legislature. As and when the British colo- 



THE AUSTRALIAN COMMONWEALTH 429 

nies respectively obtained self-governing institutions, 
each of them adopted this scheme; since it was the one 
familiar to them at home : and to it they seem all de- 
termined to adhere. 

Its distinctive features are these. 

The nominal head of the Executive, in Britain the 
Crown, in Australia the Governor-General as represent- 
ing the Crown, is permanent, and is not responsible to 
the Legislature, because he acts not on his own views, 
but upon the advice of his Ministers. 

The Ministers are responsible to the Legislature 
which virtually chooses them, and they depend upon its 
confidence for their continuance in office. 

The Ministers are however not wholly at the mercy 
of the Legislature, because they may dissolve it, that is 
to say, may appeal to the people, in the hope that the 
people will elect a new Legislature which will support 
them. This kind of government accordingly rests on 
a balance of three authorities, the Executive, the Legis- 
lature, and the People, the people being a sort of arbiter 
between Ministry and Parliament. As the Ministry can 
at any moment appeal to the people, the threat of ap- 
pealing puts pressure upon the Parliament, and keeps a 
majority cohesive. In the existence of this power of 
sudden dissolution there lies a marked difference from 
the American scheme, which some one has called As- 
tronomical, because the four years' term of office of 
the Executive and the two years' term of the Legis- 
lature are both fixed by the earth's course round the 
sun. 

I have spoken of the Legislature as the authority to 
which the Ministry is responsible. But what is the 
Legislature? In England, although Parliament con- 
sists of two Houses, the Minister-making power resides 
solely in the House of Commons. Being elective, the 
House of Commons has behind it the moral weight of 
the people and the prestige of many victories. Being 
the holder of the purse, it has the legal machinery for 



430 THE AUSTRALIAN COMMONWEALTH 

giving effect to its will, since without supplies admini- 
stration cannot be carried on. Accordingly, though the 
existence of two often discordant Houses may arrest or 
modify legislation in Britain, it does not affect the ex- 
ecutive conduct of affairs, save on the rare occasions 
when immediate legislation is deemed indispensable by 
the Executive. The same remark applies to Canada. 
There also one finds two Houses, but the Senate, being 
a nominated and not a representative body, holds an 
entirely secondary place. The Ministry may disregard 
a vote of want of confidence passed by it, just as in Eng- 
land they disregard an adverse vote of the House of 
Lords. In Australia, however, things will be quite dif- 
ferent. There the Senate has been constituted as a re- 
presentative body, elected by the peoples of the States ; 
and as the protector of the rights and interests of the 
States it holds functions of the highest importance. Its 
powers (save in one point to be presently mentioned) 
are the same as those of the House. In whom then does 
the power of making and unmaking ministries reside? 
Wherever one finds two assemblies, one finds them na- 
turally tending to differ; and this will be particularly 
likely to occur where, as in Australia, they are con- 
structed by different modes of election. Suppose a vote 
of no confidence in a particular Ministry is carried in 
one House and followed by a vote of confidence passed 
in the other? Is the Ministry to resign because one 
House will not support it ? It retains the confidence of 
the other; and if it does resign, and a new Ministry 
comes in, the House which supported it may pass a 
vote of no confidence in those who have succeeded it. 

The problem is one which cannot arise either under 
the English or under the American system. Not under 
the English, because the two Houses are not co-ordi- 
nate, the House of Commons being much the stronger. 
Not under the American, because, although the Houses 
are co-ordinate, neither House has the power of displac- 
ing the President or his Ministers. It is therefore a new 



THE AUSTRALIAN COMMONWEALTH . 431 

problem, and one which directly results from the attempt 
to combine features of both schemes, the Cabinet system 
of England and the co-ordinate Senate, strong be- 
cause it represents the States, which a Federal system 
prescribes. 

XIV. Provisions against Deadlocks. 

This, however, is only one, though perhaps the most 
acute, of the difficulties that arise from the existence of 
two co-ordinate Houses. Their differences upon ques- 
tions of legislation are always liable to produce dead- 
locks. These annoying phenomena occur in England, 
though there the House of Lords, except upon Irish 
questions, usually gives way (even without a dissolution 
of Parliament), because it is afraid of incensing the peo- 
ple and thereby bringing about its own destruction if 
it continues to resist the national will. In Irish ques- 
tions the Upper House has been apt to assume that the 
people of England and Scotland are not sufficiently in- 
terested to resent very keenly its difference from the 
Commons. In the United States there is no remedy for 
such deadlocks. They have to be endured, at whatever 
cost. The resistance of the Senate to various plans sug- 
gested by the House for dealing with the slavery ques- 
tion may be reckoned among the causes which brought 
on the War of Secession. The Australian colonies them- 
selves have had frequent experience of deadlocks in 
matters of legislation between the two Houses, for in 
every colony there have been two Houses, though in 
every colony it is the more popular House which has 
controlled the Executive. 

The difficulties I have indicated were fully before the 
minds of the statesmen who sat in the two Conventions. 
An ingenious device has been contrived for dealing with 
them (sect. 57). When the House passes a law and the 
Senate disagrees, the House may pass it again after 
three months, and if the Senate still disagrees, the Gov- 



432 * THE AUSTRALIAN COMMONWEALTH 

ernor-General may thereupon dissolve both House and 
Senate together, unless the Parliament is within six 
months of its natural end by effluxion of time. If after 
such dissolution the new House again passes the mea- 
sure, and the Senate once more disagrees, the Governor 
may convene a joint sitting of both Houses. If the pro- 
posed law is then passed by an absolute majority of the 
whole Parliament so convened in joint sitting, it shall 
be taken to have been duly passed by both Houses. 

This method involves the expenditure of a good deal 
of time and the worry of a double general election, one 
for the House and one for the Senate. But it may prove 
to be the best method of solving a problem which neither 
Britain nor the United States has yet attempted to solve, 
and which certainly needs solution. The reader who re- 
members that the numbers of the House have been fixed 
to be always double those of the Senate, will now see 
how necessary such a provision was in order to secure 
that in this final trial of strength between Senate and 
House the principle of State rights and the principle of 
population shall each have its due recognition. Should 
these two principles come into collision, should, for in- 
stance, all the members from the four small States be of 
one mind and all the members from the two large States 
of another mind, the principle of population will prevail, 
for in the two Houses sitting together, the large States 
will have sixty-one votes (twelve senators and forty-nine 
representatives), whereas the small States will have only 
fifty (twenty-four senators and twenty-six representa- 
tives). Such a conjuncture may however never arise. 

XV. Relations of the Two Houses. 

The question remains which of the two Houses will 
hold the place of the British House of Commons as de- 
termining the tenure of office by Ministries. Upon this 
question light may be cast by the provisions with regard 
to money bills. The Constitution enacts (sect. 53) that 



THE AUSTRALIAN COMMONWEALTH 433 

all bills appropriating revenue or imposing taxation 
must originate in the House, and that the Senate may 
not amend taxing bills, or those ' appropriating money 
for the ordinary annual services of the Government,' 
though it may return such bills to the House suggesting 
certain amendments in them. The Senate may however 
reject such bills. As this scheme, which somewhat re- 
sembles that of the American Constitution 1 , itself sug- 
gested by the practice of England, seems to throw upon 
the House the primary function of providing money for 
the public service, and thus the primary control of the 
national exchequer, it would seem that Ministers, un- 
able without money to carry on that service, must stand 
or fall by a vote of the House and not by a vote of the 
Senate. Yet the Senate, though it cannot take the first 
steps for granting money, can withhold money; and if 
it does so in order to get rid of a Ministry it dislikes, 
nothing short of the deadlock provision above described 
can be invoked. Nor can the expedient of mixing up a 
number of different taxing provisions in one Bill, or 
inserting other matter in appropriation Bills ('tacking'), 
be resorted to, for these are expressly prohibited by the 
Constitution (sectt. 54, 55). Possibly in practice the 
Houses will frequently agree to let the accustomed ser- 
vices of the year be provided for without much contro- 
versy, and will reserve their serious conflicts for new 
proposals regarding taxation or appropriation. 

Australians evidently expect that the usage hitherto 
prevailing in all the Colonies of letting the Ministry be 
installed or ejected by the larger House will be fol- 
lowed. Nevertheless the relations of the Commonwealth 
Houses are so novel and peculiar, that the experience 
of the new Government in working them out will deserve 
to be watched with the closest attention by all students 
of politics. Englishmen in particular have good reason 

1 In the U. S. A., however, the Senate may and does amend both revenue-rais- 
ing and appropriation bills, and indeed frequently prevails against the House in 
the quarrels which arise over these matters. 

28 



434 THE AUSTRALIAN COMMONWEALTH 

for doing so, because England, when she has substi- 
tuted a representative Second Chamber for her present 
theoretically indefensible House of Lords, will have to 
devise some means for avoiding or solving deadlocks be- 
tween such a Chamber and the House of Commons. 

Some high Australian authorities have appeared to 
doubt whether two co-ordinate Houses can be made to 
work along with Cabinet Government. They observe 
that although there may be sometimes a willingness to 
make compromises for the sake of the public service, 
there is also in all governments, and certainly not least 
in those of the United States and the British Colonies, 
a tendency to press every legal right to its furthest limit, 
even if the machine should be stopped thereby. Were 
such stoppages to become frequent, Australia might, 
they think, be driven to amend her Constitution by so 
far disjoining the Executive from the Legislature as to 
give it something of the permanence it enjoys in Amer- 
ica and Switzerland 1 . 

The relations of the Senate to the House may largely 
depend on factors still undetermined. One of these is 
the growth of population. Should the small Colonies 
grow rapidly, their representation in the House would 
before long be fairly proportionate to that which they 
enjoy in the Senate, so that the balance of parties might, 
so far as the size of States is concerned, tend to be nearly 
the same in both Houses. Another is the character of 
the controversies which will arise. These may not be 
such as to set the small States against the large ones, 
and the three party organizations, which are already 
strong, though they possess no such Machine System as 
America enjoys, may find their support pretty equally in 
all or most of the States, so that the balance of parties 

1 It was suggested in the Convention by Mr. Playford (then Prime Minister of 
South Australia) that the two Houses sitting together might appoint the Executive 
Ministry, but this plan deviated too far from British Colonial practice to find ac- 
ceptance. A similar suggestion was made by Sir John Cockburn in the Sydney 
Convention in 1891. See his speech in an interesting volume published by him en- 
titled Australian Federation (p. 139). 



THE AUSTRALIAN COMMONWEALTH 435 

may in practice be found to differ but little in the Senate 
from what it is in the House. Thus these particular 
wheels or shafts of the constitutional machine, which are 
deemed less able than others to bear a severe strain, 
may not for a long while to come have any severe strain 
thrown upon them. 

Another thing which may affect the relations of the 
two Houses is the comparative attractions which each 
will have for high political capacity. In the United 
States the Senate became, within thirty years from the 
establishment of the Constitution, an assembly much 
stronger, through the eminence of its members, than 
was the House of Representatives. As its term of mem- 
bership was longer (six years against two years), and 
as it had certain quasi-executive functions in connexion 
with foreign relations and appointments, men of ability 
preferred it to the House, and the House constantly 
saw its best talent drawn off to its rival. The Senate 
has to-day no such intellectual ascendency as it had 
then, but capable men still migrate to it when they can 
from the House of Representatives. If the House estab- 
lishes in Australia, as it will apparently do, its sole right 
to make and unmake Ministries, it will be the more 
tempting field for ambition: yet something will depend 
upon the amount of genius and character which the 
Senate attracts, for the presence of these in abundant 
measure will give it weight with the nation. 

It has been suggested in Australia that the Senate 
with its thirty-six members is too small. The Senate 
of the United States however began with twenty-six; 
and it has been a great advantage to that body that its 
original numbers were small, for traditions more digni- 
fied than those of the tumultuous House were formed, 
and a somewhat stronger sense of personal responsibility 
was developed just because the individual was not lost 
in a crowd. 



436 THE AUSTRALIAN COMMONWEALTH 

XVI. Miscellaneous Provisions. 

Questions of trade and finance fill a chapter of the 
Constitution (sectt. 81-105) ; and it was indeed these 
questions, next to the issue between the large and the 
small States, that gave most trouble to those who 
framed the instrument. It is provided that the collec- 
tion and control of all duties of customs and excise 
shall pass to the Commonwealth, but that not more 
than one-fourth thereof shall, for ten years at least, be 
retained by the Commonwealth, the other three-fourths 
being paid over to the several States, or applied to pay- 
ment of the interest on their respective debts, should 
these debts be assumed by the Commonwealth. This 
arrangement was deemed needful to supply the States 
with funds for defraying their administrative expenses 
and the interest on their debts, seeing that the chief part 
of their revenue arose from customs and excise, the 
five which prepared the Constitution, except New South 
Wales, having adopted a protective policy. Bounties 
may be given either by the Commonwealth, or by the 
States with its consent. There are provisions regard- 
ing the collection of the customs, the control of railways 
and settlement of railway rates, the use of rivers for ir- 
rigation and water storage, and the State debts, but as 
these are largely temporary, and have little special in- 
terest for the student of constitutions, important as they 
are to Australian industries, I mention them only to 
show how elaborately the scheme of union has been 
worked out, and on how many perplexing topics, settled 
provisionally by the Constitution, the Commonwealth 
Parliament will have to legislate. 

The question of the spot where the capital should be 
placed gave rise, as had happened in the United States 
and in Canada, to some controversy. It was adjusted 
by providing that the seat of Federal government should 
be in the colony of New South Wales, but at least 100 
miles from Sydney. Here an area is to be set apart 



TEE AUSTRALIAN COMMONWEALTE 437 

of not less than ioo square miles, which shall be under 
the jurisdiction of the Commonwealth, as the District 
of Columbia is under the authority of the National Gov- 
ernment in the United States : and here a stately city will 
doubtless in time spring up. 

Power is taken to admit new States, whether formed 
out of existing States or not, upon any terms and condi- 
tions (e.g. as to number of Senators) which the Parlia- 
ment may fix, but if the new State is formed out of an 
old one, only with the latter's consent. The Parliament 
has also full power to accept and provide for the ad- 
ministration of any territory transferred to it by the 
Crown, so that no constitutional questions can arise re- 
sembling that which has occupied American lawyers 
since the annexation of Puerto Rico. 

XVII. Amendment of the Constitution. 

Last of all we come to the mode of amending the Con- 
stitution, a mode easier to apply than that prescribed for 
the United States, but showing the influence to some 
extent of the American though more largely of the Swiss 
model in its reference to the popular vote. 

Every law proposing to alter the Constitution must 
be passed by an absolute majority of each House, and 
thereupon (after two but before six months) be sub- 
mitted to the voters of every State. If in a majority of 
States a majority of the electors voting approve the pro- 
posal, and if these State majorities constitute a majority 
of all the electors voting over the whole Commonwealth, 
the amendment is passed, and is then to be presented to 
the Crown for assent. Should the two Houses differ, 
one passing the proposed law and the other rejecting 
it (or passing it with an amendment which the first- 
mentioned House rejects), the House which approves 
the proposal may again pass it, and if the dissenting 
House again dissents, the amendment may be submitted 
to the people as if both Houses had passed it. The de- 



438 TEE AUSTRALIAN COMMONWEALTE 

cision of the people is final. To meet the fact that the 
suffrage is not in all the States confined to men, it is 
further provided that, in any State wherein all adults are 
entitled to vote, only one half of the vote shall be 
counted 1 . 

Thus the requirements for the passing of an Amend- 
ment are : — 

1. Absolute majority in each House of Parliament, 
or else absolute majority in one House given twice, the 
second time after three months' interval, plus submission 
on both occasions to the other House. 

2. Approval of the people in a majority of States (i.e. 
at present in four States at least). 

3. Approval of a majority of the people voting over 
the whole Commonwealth. 

The American Federal Constitution requires a two- 
thirds' majority in each House of Congress and a three- 
fourths' majority of States, or else the proposal of a 
Convention by two-thirds of the States and a three- 
fourths' majority of States approving what the Conven- 
tion has settled, conditions extremely difficult to se- 
cure. The Swiss system permits the Constitution to be 
amended by the same process as is applied to the passing 
of laws, plus a popular vote which results in a majority 
of Cantons and in a majority of the people voting over 
the whole Confederation. 

XVIII. Relations of the Australian Commonwealth 
to the Crown. 

It has not seemed necessary to set forth the relations 
of the Commonwealth to the British Crown, because 
these relations are substantially those which have here- 
tofore existed between the Crown and each of the self- 

1 But ' no alteration diminishing the proportionate representation of any State 
in either House of the Parliament, or the minimum number of representatives of a 
State in the House of Representatives, or increasing-, diminishing or otherwise 
altering the limits of the State, shall become law unless the majority of the electors 
voting in that State approve the proposed law ' (sect. 128). 



THE AUSTRALIAN COMMONWEALTH 439 

governing colonies now united in the Federal Common- 
wealth. The chief difference is that the Commonwealth 
Parliament receives certain powers (as to extra-terri- 
torial fisheries and relations with the islands of the 
Pacific) which were previously exerciseable only by the 
(now extinct) Federal Council of Australasia (mentioned 
above), that it has a general power to legislate on ' ex- 
ternal affairs ' (a somewhat vague term, sect. 51, xxix), 
and that it may ' exercise within the Commonwealth, at 
the request or with the concurrence of the Parliaments 
of all the States directly concerned, any power which 
can now be exercised only by the Parliament of the 
United Kingdom or by the Federal Council of Austra- 
lasia ' (sect. 51, xxxviii). Apart from these provisions, 
which may give rise to some delicate questions, the prin- 
ciples and practice which have guided the action of the 
Home Government and of the Colonial Governors will 
apparently be preserved. Though the Imperial Parlia- 
ment has an unquestioned right to legislate for every 
part of the British dominions so as to override all local 
legislation, it does not now exercise this power except for 
a few purposes of utility common to all, or many, British 
possessions, such as for the regulation of merchant- 
shipping or copyright, and when it does so, it secures the 
assent of the self-governing Colonies. So again, though 
the Crown has the legal right to withhold consent from 
Colonial Statutes, this right is rarely exerted, and then 
only in respect of some general imperial interest which 
it is supposed that the statute in question may preju- 
dicially affect, i.e. the Crown's right is not exerted in 
the interest of any class of persons in the Colony or in 
pursuance of any particular view entertained either by 
the Governor there or by the Ministry at home. The new 
Australian Constitution provides (sectt. 58-60) that 
when a measure passed by the Parliament is presented 
to the Governor-General, he may either assent to it in 
the Queen's name (but subject to a power to the Queen 
to disallow the same within one year) or he may withhold 



440 THE AUSTRALIAN COMMONWEALTH 

assent; or he may reserve it for the Queen's pleasure, 
in which last case it shall not take effect unless he an- 
nounces within two years that the Queen has assented 
to it. This right of veto, though it looks on paper larger 
than that which belongs to the President of the United 
States, seeing that the President's veto can be overridden 
by a two-thirds' majority in each House of Congress, 
is in reality far more limited, and will constitute no check 
(except where imperial interests may be affected) upon 
the practically sovereign power of the Commonwealth 
Parliament. 

XIX. Comparison with the Constitutions of 
the United States and Canada. 

Before I make some general reflections on the cha- 
racter of this Australian Constitution, it is worth while 
to note summarily the principal points in which it differs 
from the two other Federal Constitutions which it most 
resembles. 

The provisions which it has borrowed from the 
American Constitution have been already adverted to. 
It differs from that Constitution in the following (among 
other) respects : — 

i. It is a longer instrument, going into much fuller 
detail on many topics. 

2. It leaves less power to the States and gives more 
power to the Commonwealth; and it enables the Com- 
monwealth Parliament to legislate for a State upon the 
State's request, a thing which lies quite outside the func- 
tions of Congress. 

3. It does not establish a complete system of Federal 
Courts covering the whole area of the Commonwealth, 
but allows State Courts to be invested with Federal 
jurisdiction. 

4. It makes the Federal High Court a Court of ap- 
peal from State Courts, whereas in the United States 
each State Supreme Court is final in its proper sphere. 



THE AUSTRALIAN COMMONWEALTH 441 

5. It contains hardly any restrictions, in the nature of 
a ' Bill of Rights/ upon the power of the Federal Legisla- 
ture over the individual citizen. 

6. Instead of disjoining Legislature and Executive, 
it unites them closely by the system of Responsible or 
Cabinet Government, and so far from excluding every 
official from Congress, it makes a seat in Parliament a 
condition of Ministerial office. 

7. It vests the choice of the Head of the Executive, 
not in the people, but in an external authority, the 
British Crown. To be sure, this Head is nominal and 
not responsible either to the people or to the legis- 
lature. 

8. It vests the election of Senators in the people, not 
in State Legislatures, gives the Senate no power of 
amending but only of suggesting amendments in money 
bills, makes the Senate dissoluble in case of a deadlock 
between it and the House, and contemplates the possi- 
bility that new States may have a smaller representa- 
tion in the Senate than original States. 

9. It gives to the Executive no such veto on legis- 
lation as the President has in the United States. I have 
already explained that the veto of the Governor-General 
and the Crown is a different thing, and rarely employed. 

10. It makes the amendment of the Constitution a 
much less tedious and difficult process. 

Thus it may be said that, as compared with the Ameri- 
can Constitution, it vests more power in the National 
Government as against the State Governments, and that, 
as between the various departments of the National 
Government itself, it concentrates power more fully in 
the hands of the Legislature and imposes fewer restric- 
tions upon its action. 

The Constitution of Canada seems at first sight nearer 
to that of Australia than does the American. It has a 
Monarch, represented by a Governor-General, for the 
head of its Executive. It contemplates a number of 
States small when compared with the forty-five of the 



442 THE AUSTRALIAN COMMONWEALTH 

American Union. It has adopted the British system of 
Cabinet or responsible Government. 

But the differences are really so considerable as to 
place Australia's scheme as far from that of her colonial 
sister as from the American. Among them are the 
following : — 

i. The Canadian Constitution prescribes the Constitu- 
tions of the several Provinces, though it permits the 
Provincial legislatures to alter them (subject to a Federal 
veto). The Australian assumes its State Constitutions 
as existing, and makes no change in them, except so 
far as the Federation controls or supersedes them. 
Hence the antecedent power of changing them re- 
mains, so far as they are not affected by the Federal 
Constitution. 

2. Australia leaves to the States all residuary powers 
(i.e. powers not expressly granted). Canada withholds 
them from the Provinces and vests them in the 
Dominion. 

3. Australia leaves the State Governors to be ap- 
pointed, as now, by the Home Government, apart from 
Federal interference. Canada gives the appointment of 
them to the Federal Ministry. And whereas in Canada 
a Provincial Governor cannot communicate directly with 
home but only with the Governor-General, in Australia 
the State Governor and his Ministers are in direct touch 
with the British Government in London. 

4. Australia gives to the Federal Government no right 
whatever to interfere with State Statutes. Canada in- 
vests the Dominion Government with a veto on Pro- 
vincial legislation by placing the Governor-General as 
regards such legislation in the place which the Queen 
holds as regards Dominion legislation. 

5. Australia distinguishes Federal from State juris- 
diction, taking power to establish Federal Courts other 
than her High Court, and to invest State Courts with 
Federal jurisdiction. Canada has no special Federal 
Courts other than the Supreme Court of the Dominion. 



THE AUSTRALIAN COMMONWEALTH 443 

6. Australia makes her Senate an elective assembly. 
In Canada the Senate is nominated by the Dominion 
Government, and is therefore a weak body, quite unfit 
to try conclusions with the House which has the people 
behind it. 

7. Australia provides a method whereby the Common- 
wealth may amend its Constitution. Canada has no such 
method, and thereby leaves amendment to the Imperial 
Parliament of the United Kingdom. 

This comparison shows that the Australian scheme 
of Federal Government stands intermediate between 
that of the United States and that of Canada. In the 
United States, the Federal Government has less power 
as against the States than in Australia. In Canada, the 
Federal Government has more power, or at least a wider 
range of action. In other words, the Australian sys- 
tem approaches nearer, in point of form, to a Unitary 
Government than does the United States, but not so 
near as does Canada. I am speaking merely of form, 
that is, of the institutions as they stand on paper, for it 
does not necessarily follow that the spirit in which in- 
stitutions are worked will precisely correspond to their 
form. The old Romano-Germanic Empire, for instance 
(1638-1806), was less unitary in practice than would have 
been collected from its form; the new German Empire 
(since 1871) is more unitary in spirit and working than 
its form would necessarily convey. 

XX. General Observations on the Constitution. 

Technically regarded, the Constitution is an excellent 
piece of work. Its arrangement is logical. Its language 
is for the most part clear and precise. The occasional, 
and perhaps regrettable, vagueness of some expressions 
appears due, not to any carelessness of the draftsmen, 
but to the nature of the subject-matter. The cumbrous- 
ness of the provisions regarding customs, duties, and 
the control of railways is the almost inevitable result of 



444 TEE AUSTRALIAN COMMONWEALTE 

an effort to meet the claims and appease the apprehen- 
sions of neighbouring communities with interests that 
have been deemed opposed. Although it is much longer, 
as well as less terse, than the Constitution of the United 
States, going into fuller detail, and with more of the 
flavour of an English statute about it, it nevertheless, 
like that Constitution, leaves much to be subsequently 
filled up by the action of the legislature. A very large 
field of legislation remains common to the States and 
the Commonwealth Parliament; and though statutes 
passed by the latter will of course override or supersede 
those which may have been passed by the former, it 
may be many years before the higher Parliament finds 
leisure to cultivate all the ground which lies open before 
it. A further range of activity for that Parliament may 
disclose itself if the State legislatures should exert the 
power they possess of asking the Commonwealth to take 
over part of their work. And apart from both these 
lines of legislative action, the Parliament will find a very 
large number of matters which the Constitution has ex- 
pressly directed it to settle by statutes. Till such statutes 
have been enacted, many points material to the working 
of the system will remain undetermined. 

In two points the experience of the United States has 
been, consciously or unconsciously, turned to account. 
The complaint has often been made in America that the 
Constitution contains no recognition of the Supreme 
Being. The Australians have introduced such a recog- 
nition in the preamble of the Imperial Act establishing 
the Constitution, which runs as follows : ' Whereas the 
people of New South Wales, Victoria, South Australia, 
Queensland, and Tasmania, humbly relying on the bless- 
ing of Almighty God, have agreed to unite in one in- 
dissoluble Federal Commonwealth under the Crown of 
the United Kingdom,' &c. And they have also solemnly 
enounced in the same preamble that indissolubility of 
their union which the Americans did not enounce in 
1788, and the absence of which from the instrument gave 



THE AUSTRALIAN COMMONWEALTH 445 

rise to endless argumentation on the part of those 
who maintained the right of a State to retire from the 
Federation. 

The perfection of any Federal system may be tested 
by the degree of thoroughness with which the Federal 
principle is worked out in its application, not only to 
the legislative, but also to the executive and judicial 
branches of government. In this respect the Australian 
scheme is less perfect than the American; for the Com- 
monwealth has received power to legislate, no doubt at 
the request of the State, on purely State matters, to 
return to the States part of the revenue it collects, and 
to assume the pecuniary liabilities of the States. There 
is also, as already noted, no such effort as in America 
to secure that questions of State law shall be determined 
solely by State Courts, for such cases may be appealed 
from State Courts to the Federal High Court. Thus 
the Nation looms large over the whole instrument, 
overshadowing the States. There are indeed many pro- 
visions for safeguarding the interests of the States, yet 
these are not so much recognitions of States' rights as 
stipulations made to secure material advantages, indus- 
trial or commercial or financial. An explanation of this 
remarkable feature of the scheme may be found in the 
phenomena of Australian as compared with those of 
American history. The thirteen States which united in 
1788-9 had each of them a long history. The two oldest 
dated back to the beginning of the seventeenth century. 
The youngest had nearly sixty years of political life 
behind it. All were animated by a strong sentiment 
of local independence, and by a passion for liberty which 
had become associated with local independence. Their 
notions of a Unitary Government were formed from 
England, whose monarch they had latterly learned to 
hate as their oppressor. Hence their love for their 
States was largely sentimental. Their minds were filled, 
not by the mere sense of what they gained from their 
States as business men, but by the loyalty they bore to 



446 THE AUSTRALIAN COMMONWEALTH 

their States as protectors of their civic rights and em- 
bodiments of their historical traditions. 

Very different were the feelings of the Australians. 
The oldest colony dated back scarcely more than a hun- 
dred years, and had enjoyed responsible government for 
less than fifty. Proud as each colony was of its progress, 
there had not been time for those political traditions to 
be formed in which the love of local independence roots 
itself. Neither were there between the several colonies 
such differences of origin or of usages and ways of life 
as separated the New Englanders from the men of Vir- 
ginia and the Carolinas, for the Australians had emi- 
grated so recently from Britain that no local types had 
yet been formed. Still less was there that aversion to a 
Unitary system of government which the strife with Eng- 
land had evoked among the Americans. The only politi- 
cal model which the Australians knew at first hand was 
the government of Britain by its Parliament, a govern- 
ment which had ceased in 1832 to be oligarchic, and had 
since 1867 begun to be democratic. Accordingly, among 
the Australians, State feeling had a thoroughly practical 
and business character. It took in each man the form of 
a resolve to secure the agricultural and trading interests 
of his own part of the country. It was in fact the wish 
to make a good bargain for his community and himself. 
Sentiment there was and is. But the sentiment gathered 
round the Commonwealth of the future rather than the 
Colony of the past. The same kind of feeling which at- 
tached the sons of the Cavaliers to Virginia and the Puri- 
tans of Massachusetts to the old ' Bay State ' made the 
Australians desire to found a great nation which should 
be the mistress of the Southern seas. Hence the absence 
of any jealousy of the central power beyond that which 
is suggested by the fear that local industrial or commer- 
cial interests might be unfairly dealt with. 

This attitude of Australian feeling will therefore (if 
the view here presented be correct) work towards the 
development of those centralizing tendencies in the Con- 



THE AUSTRALIAN COMMONWEALTH 447 

stitution for which its terms give ample scope. In all 
forms of polity the influences which draw the members 
of a composite political community together and those 
which thrust them asunder are partly material, partly 
sentimental 1 . How the influences of material interest 
will work in Australia I will not attempt to predict. 
Some of them may prove centrifugal; others, such as 
those of trade, are clearly centripetal. The Constitu- 
tion frankly recognizes that economic conditions pre- 
scribe a federal rather than a unitary government. But 
it is a significant fact that the influences of sentiment 
were arrayed on the side of the Nation rather than on 
that of the States. One can read this between the lines 
of the Constitution; and it explains why the Frame of 
Government is less consistently Federal than is that of 
the United States. 

XXI. Modern and Democratic Character of 
the Australian Constitution. 

The Australian instrument is the true child of its era, 
the latest birth of Time. Compared with it, the Ameri- 
can Constitution seems old-fashioned, and parts of the 
Swiss Constitution positively archaic. Cabinet Govern- 
ment, whose fully developed form is scarcely a century 
old, is taken for its basis. Ideas and enterprises, pro- 
blems and proposals, so new that they are only just be- 
ginning to be seriously discussed, figure in it. As sla- 
very, an institution almost coeval with the human race, 
but essentially barbarous, survived to be mentioned 
(under a transparent euphemism) in the Constitution 
of the United States, so a new industrial question — viz. 
the struggle between white labour and free coloured 
labour — makes its appearance in this Australian docu- 
ment. Here too are the new products and new methods 
of science, telegraphs and telephones and the keeping of 
meteorological observations ; here is the extension of 

1 See Essay IV. 



448 THE AUSTRALIAN COMMONWEALTH 

the suffrage to women ; here are the new troubles which 
spring from contests between employers and workmen ; 
here the new proposals for throwing on the State the 
function of providing for its members in sickness and 
old age ; here an express recognition of the right of a 
State to control the traffic in intoxicating liquors. And 
above all these one perceives through the whole instru- 
ment that dominant factor of our age, the ever-present 
and all-pervading influence of economic forces, of in- 
dustrial production, of commerce, of finance. The in- 
creased and increasing importance of these influences 
in the life of the modern world, stimulated as they have 
been by the amazing progress of scientific discovery, 
finds a fuller expression in this Constitution than in any 
other yet framed. 

As in these points this Constitution is at least abreast 
of European and American theory, and ahead of Euro- 
pean or American practice, so also it represents the 
high-water mark of popular government. It is pene- 
trated by the spirit of democracy. The actual every- 
day working of government in the Australian Colonies 
is more democratic than in Britain, because Britain has 
retained certain oligarchical habits, political as well as 
social. It is more democratic than in the United States, 
because there both the States and the Union are fettered 
by many constitutional restrictions, and because wealth 
has there (as indeed in Britain also) been able to exert 
a control none the less potent because half-concealed. 
But the Constitution of this Federal Commonwealth is 
more democratic than are the Constitutions of the seve- 
ral Australian colonies, in some of which property quali- 
fications and nominated second chambers have survived 
till now. It prescribes no qualification for a Senator or 
Representative beyond his having attained the age of 
twenty-one and being himself qualified to become an 
elector. He need not even be a resident in the State 
where he seeks election. The Senate as well as the 
House is elective ; both are chosen directly by the peo- 



THE AUSTRALIAN COMMONWEALTH 449 

pie, and on the basis of the suffrage which each State 
prescribes for the election of its more popular House. 
The duration of the House is only three years. The 
direct popular vote, an institution specially characteris- 
tic of advanced democracy, which has been developed 
independently in the United States and in Switzerland 
(where it has taken the double form of a Referendum to 
the people and an Initiative proceeding from the peo- 
ple), is here applied to the enactment of amendments to 
the Constitution, and, in the form of a general election 
of both Houses simultaneously, to the settlement of 
deadlocks between the Houses. There is no veto on the 
acts of the Legislature, for that vested in the Governor- 
General and in the Crown is not intended to be used ex- 
cept in the rare cases where imperial interests may be 
touched. In fact all those checks and balances in the 
English and American Constitutions by which the cen- 
sors of democracy used to set such store, have here 
dwindled down to one only, viz. the existence of two 
Chambers. These two will be elected on the same fran- 
chise and composed of similar men, but the tendency 
to dissension so natural to rival bodies may sometimes 
interpose delays and ought certainly to make the criti- 
cism of proposals more searching. If the principle of 
popular sovereignty is expressed with equal clearness 
in the Constitutions of America and Switzerland, it as- 
sumes in this Australian Constitution a more direct and 
effective form, because many of the restrictions which the 
two former constitutions (and especially that of Amer- 
ica) impose on the legislature in the supposed interests 
of the people are absent from the Australian instrument. 
In Australia the people, through their legislature with 
its short term, are not only supreme, but can, by the 
legislature's control of the Executive, give effect to their 
wishes with incomparable promptitude. For this pur- 
pose, the expression ' people ' practically means the 
leader who for the time being commands the popular 
majority. Holding in his hand both the Executive 
29 



450 THE AUSTRALIAN COMMONWEALTH 

power of the Cabinet and the legislative power of Parlia- 
ment, he has opportunities of effecting more than any 
one man can effect under the constitutions either of 
America or of Switzerland. 

The solitary restraint which Australia provides is the 
co-ordinate authority of the Senate, a hostile majority 
in which may check or at least delay his legislative pro- 
jects. Yet if his party in the country be well organized 
and his programme alluring to the masses he may con- 
trol the Senate as well as the House, for it does not fol- 
low that because the smaller States have prudently 
placed their interests under the protection of the Senate, 
they will on the great issues of politics be usually found 
opposed to their larger neighbours 1 . 

This highly democratic character of their Constitu- 
tion has been fully appreciated by Australian statesmen. 
The effusiveness with which they dwell upon it is pro- 
bably more sincere than even that which is displayed by 
politicians in England, America, or France, when they 
chant the praises of the multitude. Australians are as 
sanguine in their temper now as Americans were in the 
days before the clouds of Slavery and Secession had 
begun to darken their sky. 

XXII. Political Party in Australia. 

Although the Constitution says no word about politi- 
cal parties, the fact that it contemplates a party system is 
written over it in bold characters. The sages of the 
Philadelphia Convention of 1787 neither intended nor 
expected that the scheme they devised would fall into 
the hands of parties. Indeed they had a touching faith, 
dispelled as soon as Washington retired from the scene, 
that the electors who were to be chosen to elect the 
President would select the best man in the nation irre- 

1 In the first election of members of the two Houses, which took place while 
these pages were passing through the press, every State was divided upon the issue 
of Free Trade versus Protection, though the Protectionist (or high-tariff; party 
secured more seats, in proportion, in the House than it did in the Senate. 



THE AUSTRALIAN COMMONWEALTH 451 

spective of his political ties. The Swiss, strange as it 
may seem to men of English or Anglo-American race, 
have succeeded in keeping their Executive, elected 
though it is by the Chambers, out of party politics alto- 
gether, nor do parties dominate the legislature and co- 
lour the public life of the nation as in America and Eng- 
land. But Government of the English ' Cabinet type ' 
is essentially party Government, that is to say, it has 
been so hitherto both in England and wherever else it 
has been tried, and no one has yet shown how it can be 
made to work otherwise. 

In America the great parties are younger than the 
Constitution, which may be said to have created them. 
In England they are older than Cabinet Government 
proper, being practically contemporaneous in their rise 
with that very rudimentary form of the Cabinet which 
began to emerge in the time of King Charles II. In 
Australia every colony has had such active and skilfully- 
organized parties that no one doubts but what the Fede- 
ral Legislature will find its first Ministry forthwith pro- 
vided with a competent Opposition. It is generally 
believed that the tariff will furnish the first, and for some 
time the main, ground of party division, for the new 
Government must begin by providing itself with an ade- 
quate revenue ; the chief part of that revenue must be 
raised by indirect taxation, and the issue of Free Trade 
versus Protection has for years past been a burning one 
in the largest Colonies. 

I have observed that the Australian scheme contem- 
plates a party system to work it. But what sort of a 
party system? Obviously one in which there are two 
parties only, each cohesive, each prepared to replace its 
antagonist in the Executive. Such was the party system 
of England till the present generation. Such has been 
the party system of the United States. Exceptions in- 
deed there have been, such as the Know-Nothing party 
in 1852, the Greenback party in 1876, the Populist party 
which arose in 1889, and is not quite extinct now (Febru- 



452 TEE AUSTRALIAN COMMONWEALTH 

ary 1901). In the United States the power of the two 
great organizations is so vast, and the cost of creating 
a new party so deterrent, that a third organization sel- 
dom appears, and if it appears, presently disappears. 
But in France there have been and are several parlia- 
mentary groups, which frequently change their attitude 
towards one another, sometimes combining to support 
a Ministry, sometimes falling asunder and leaving it to 
perish, because one group alone was not sufficient to 
sustain it. Hence the lives of Cabinets have been short, 
and would have been still shorter but for the fact that 
an imminent peril to republican government itself has 
sometimes compelled the various republican groups to 
hold together. In Britain the same difficulty became 
acute from 1880 onwards, as the Irish Nationalists con- 
solidated themselves in a distinct Third Party; and it 
may at any moment create serious embarrassment. It 
exists in Germany also, and in the Reichsrath of the 
Austrian half of the Austro-Hungarian Monarchy. 
Now in several of the Australian Colonial Parliaments 
a Labour party has recently arisen, which, keeping itself 
independent of the two older parties, can throw its 
weight on one or the other side and endanger the sta- 
bility of Cabinets. Should this phenomenon reappear 
in the Parliament of the Commonwealth, it will com- 
plicate still further a position which the co-ordinate 
powers of Senate and House make complicated enough 
already 1 . 

XXIII. Political Issues likely to arise 
in Australia. 

The mention of parties suggests another question, the 
last I shall attempt to discuss, viz. the lines on which 
the political life of Australia is likely to move under her 
new Constitution. It is a topic on which little will be 

1 Since these lines were written, the phenomenon has reappeared, for at the first 
elections, held in the spring of 1901, of the Senate and House, the Labour party 
obtained more than one-fifth of the seats in each House. 



THE AUSTRALIAN COMMONWEALTH 453 

said by any one who remembers how seldom great con- 
stitutional changes have been followed by the results 
prophesied at the time. The Reform Bill of 1832 in 
Britain, the Civil War in the United States, the union of 
Italy under the dynasty of Savoy, not to speak of the 
French Revolutions of 1789 and 1848, all brought forth 
fruits very different from those predicted by some of 
the most judicious and unbiassed contemporary ob- 
servers. Even the extension of the suffrage and redis- 
tribution of seats effected in Britain in 1884-5 were fol- 
lowed by a shifting of the balance of party strength 
exactly the opposite of that which the shrewdest party 
politicians had expected. But without attempting fore- 
casts, one may try to indicate certain conditions likely 
to affect the development of Australian national and po- 
litical life under the new form which this Constitution 
gives it. 

First let us ask what are the controversies likely to 
occupy the nation and to supply a basis for national 
parties ? 

Taking one country with another, it will be found that 
the questions on which men have grouped themselves 
into parties may be classed under five heads, viz. : — 

1. Questions of Race, such as those which have con- 
tributed to distract Ireland, which to-day trouble the 
Austrian Monarchy and (as respects the Poles) the Prus- 
sian Monarchy, which exist, though at present not acute, 
in Canada, and which are painfully acute in South Africa. 

2. Questions of religion, now generally less formida- 
ble than they once were, yet embittering disputes re- 
garding education in many modern countries. 

3. Questions relating to foreign policy, whether as to 
the general lines on which it should be conducted, or as 
to the attitude to be held towards particular States at 
any given moment. 

4. Questions regarding the distribution of political 
power within the nation itself. 

5. Questions of an economic or economico-social 



454 TEE AUSTRALIAN COMMONWEALTE 

kind, e.g. regarding the disposal of land in public hands 
or its tenure in private hands, regarding the conditions 
of labour, regarding taxation and finance, the policy of 
Protection or Free Trade, the policy of progressive im- 
posts, the propriety of assisting particular industries or 
particular classes out of public funds, whether national 
or local. Some of these may seem to be rather social 
than economic, but it will be found upon scrutiny that 
it is their economic aspect, i.e. their tendency to take 
money from or give money to some class in the com- 
munity, that makes them bases for party combination. 
A purely social question seldom assumes great political 
significance. 

(i, 2) Applying this classification to Australia we shall 
find that the first two sets of questions are absent. All 
the people are of practically the same race. None are 
animated by any religious passion, although contro- 
versies have sometimes arisen over theological teaching 
in State schools. 

(3) Questions of foreign policy do not, strictly speak- 
ing, come within the scope of the Commonwealth Parlia- 
ment, because they belong to the mother country. 
Nevertheless, it cannot be doubted that the Parliament 
will from time to time interest itself in them, especially 
as regards the isles of the Pacific and of the Eastern 
Archipelago, and will give forcible expression to its 
views should any crisis arrive. One can well imagine 
that the question of the attitude which the Common- 
wealth should assume, or urge the mother country to 
assume, towards Germany or France, or Holland, or 
even towards China or Japan or the United States, when 
any of these Powers may be taking action in the West- 
ern Pacific, might give rise to political contention. 

(4) As respects the distribution of political power and 
the structure of the Federal Government, Australia is 
so democratic already that it cannot go much further. 
It will doubtless, however, be proposed to extend to 
women in all the States that right of voting at Common- 



TEE AUSTRALIAN COHMONWEALTE 455 

wealth elections which they already enjoy in South Au- 
stralia and Western Australia, under the local law, or 
to apply more widely the institution of the direct popular 
vote ; or to amend the Constitution in some point which 
will raise an issue between the more radical and the more 
conservative sections of opinion. That questions of con- 
stitutional amendment have played so small a part in 
American politics may be attributed to the extreme dif- 
ficulty of securing the majorities required for altering 
the Constitution. In Australia the process will be far 
easier. The history of the United States during the first 
seventy years of the Constitution suggests that the ques- 
tion of the respective rights of the Federation and of 
the States may furnish a prominent and persistent issue. 
This is quite possible, for in Federations there is a ten- 
dency for many controversies of various kinds to con- 
nect themselves with, or to raise afresh, controversies 
regarding the true construction of the Federal instru- 
ment as respects the powers which it assigns to the 
Nation and to the component communities. 

(5) It is however questions of the economic order that 
are likely to occupy, more than any others, the minds 
and energies of Australian statesmen. The tariff is a 
practically inexhaustible topic, because apart from the 
general issue between a Protective and Free Trade 
policy, the particular imports to be taxed and the par- 
ticular duties to be imposed will furnish matter for de- 
bates that can hardly have finality, seeing that cir- 
cumstances change, and that the financial needs of the 
Government will increase. It need hardly be said that 
in a new country like Australia direct taxation is difficult 
to collect and highly unpopular, so that larger recourse 
will be had to customs and excise than orthodox econo- 
mists could justify in Europe. The financial relations 
between the Commonwealth and the States will be an- 
other fertile source of controversy. So may the regula- 
tion of the railways, which the Commonwealth seems 
likely to take over. So will the arrangements for secur- 



456 THE AUSTRALIAN COMMONWEALTH 

ing the respective rights of different States as regards 
both irrigation and the navigation of the rivers, practi- 
cally the only rivers of the Continent, which intersect the 
three south-eastern colonies. Among the labour ques- 
tions likely to arise, one problem, much before the minds 
of Australians, may be found to cause difficulties in its 
details if not in its general principle ; viz. the exclusion 
of immigrants of coloured race, Chinese, Japanese, Ma- 
lays, and Indian coolies. The white labourers of the 
temperate colonies have been strongly opposed to the 
admission of such strangers, but the planters of the 
tropical north, who have used the labour of Pacific 
islanders on their sugar estates, take a different view of 
the case. 

Some may think that the obvious line of party division 
will be found to be that which ranges the four smaller 
and the two larger States into opposite camps. If this 
should happen, which may well be doubted, it will be 
owing to a coincidence of economic interests, and not 
to the mere fact that the strength of one set of States 
lies in the House, that of the other in the Senate. The 
two largest States, New South Wales and Victoria, have 
hitherto been conspicuously divergent in their financial 
policy. In America, though the small States fought hard 
against the large ones in the Convention of 1787, the 
distinction has never since that date possessed any per- 
manent political significance. 

If parties form themselves on any geographical lines, 
the line will more probably be one between the tropical 
and the temperate regions. These tropical regions are 
at present much less populous and wealthy than is the 
temperate south-east corner of the Continent. They will 
doubtless increase both in wealth and in population, but 
as the strong sun forbids out-door labour to white men, 
the population enjoying political rights cannot, for gene- 
rations to come, be a large one. 



THE AUSTRALIAN COMMONWEALTH 457 

XXIV. Possible Entrance of New States. 

The existing situation may be so materially affected 
by the entrance of new States that one naturally asks 
what are the prospects that new States will be admitted. 
As the whole Continent is already divided among the 
five existing States, new ones can come into being only 
by carving up the three larger of these. There has al- 
ready been talk of dividing Queensland into two or per- 
haps three States. Others might be formed out of the 
now sparsely peopled regions of the north and north- 
west, when they have become more thickly inhabited. 
How fast the process of colonization will advance in 
these regions will depend upon what engineering science 
may be found able to do for the more arid tracts in the 
way of storing rain-water and raising it from deep wells, 
while something will depend on the disposition of the 
Federal Government to spend money for that purpose. 
Nor is another element to be overlooked. Vast as is 
the mineral wealth already known to exist in the ex- 
plored parts of Australia, it may be equalled by that 
which exists in regions which have received no thorough 
geological examination. Should mines begin to be 
worked in the arid tracts, an additional motive would 
be given for the provision of water supplies there, for 
the existence of a population furnishing markets would 
stimulate men to develop the capacities of the soil for 
ranching and even for tillage. These possibilities show 
how many factors hitherto undetermined may go to 
moulding the political future of the country. The in- 
crease of population in regions now thinly peopled would 
either make the four smaller States, or some of them, 
the equals of the larger, or would, more probably, lead 
to the creation of new States, some of them with a cha- 
racter different from that of the two which now com- 
mand a decisive majority in the House of Representa- 
tives. As the settlement of the Mississippi Valley 
changed American politics, so a filling up of large parts 



458 TEE AUSTRALIAN COMMONWEALTE 

of the interior and north of Australia, unlikely as this 
now appears, might affect her constitutional growth in 
ways at which we can now only guess. 

At present not only these tropical regions, but also the 
settled parts of Western Australia are separated by vast 
uninhabited spaces from the populous south-east corner 
of the continent. Hence just as in Canada an Interco- 
lonial Railway to connect Nova Scotia and New Bruns- 
wick with Quebec and Ontario was provided for in the 
Constitution of 1867, and just as the construction of the 
great transcontinental Canadian Pacific line enabled 
Manitoba and British Columbia to become effective 
members of the Federation, so a line of railway from 
east to west across Australia, as well as the completion 
of the line, already partly constructed, from the south 
to the north, are among the political needs of the Com- 
monwealth, and might do much to weld its people into 
an even more united nation. 

One community remains to be mentioned whose geo- 
graphical position towards Australia recalls the saying 
of Grattan that while the Ocean forbade Ireland to be 
politically severed from Britain, the Sea forbade an in- 
corporating union. It has been hoped that New Zea- 
land would enter the Federation, and she has herself 
seriously considered whether she ought to do so. With 
a healthy climate, a soil generally well watered, and an 
area not much less than that of the British Isles, New 
Zealand has evidently a great future before her. The 
population, now between 700,000 and 800,000, has tripled 
within the last thirty years; and the level of personal 
comfort and well-being is as high as anywhere in the 
world. Her accession would give further strength to 
the Federal Commonwealth. But New Zealand, as one 
of her statesmen observed, has twelve hundred reasons 
against union with Australia, for she is separated from 
the nearest part of Australia by twelve hundred miles of 
stormy sea, a distance more than half of that which 
divides Ireland from Newfoundland. She may therefore 



THE AUSTRALIAN COMMONWEALTH 459 

think that some sort of permanent league with Austra- 
lia, for the purposes of combined naval defence and joint 
action in external questions of common concern, would 
conform better to her outlying position than would par- 
ticipation in a Legislature which must be mainly occu- 
pied with the affairs of Australia. Of the subjects 
assigned by the Constitution to the Commonwealth Par- 
liament, there are several in which, because purely Au- 
stralian, New Zealand would have no interest, some also 
with regard to which she could legislate better for her- 
self than the Commonwealth could legislate for her, in- 
asmuch as her economic and social conditions are not 
the same as those of Australia. An illustration is fur- 
nished by the difference between the native races in the 
two countries. The Australian aborigines, one of the 
most backward branches of the human family, are ob- 
viously unfit for the exercise of any political functions. 
They are not permitted to vote in any colony, and the 
Constitution provides that in determining the number 
of representatives to be allotted, to a State they shall 
not be reckoned among its population. But the Maoris 
of New Zealand are an intelligent folk, to whom New 
Zealand has given the suffrage, and who are now on 
excellent terms with their white neighbours. It would 
no doubt be possible for the Commonwealth Parliament 
to legislate differently for them and for the ' black fel- 
lows ' of Australia ; but their dissimilar character shows 
the difference of the problems which arise in the two 
countries. New Zealand has however an interest in ob- 
taining free access to the Australian markets, and her 
final decision as to entering the Federation may be in- 
fluenced by the commercial policy which the larger coun- 
try pursues 1 . 

In this changeful world, no form of government ever 
remains the same during a long series of years, and no 
Federation, however strictly the rights of its members 

1 While these pages were passing through the press, a Commission appointed in 
New Zealand to consider the question has reported strongly against her entrance 
into the Australian Federation. 



460 THE AUSTRALIAN COMMONWEALTH 

may be secured by a Rigid Constitution, can continue to 
maintain exactly the same balance of powers between 
the Nation and the States. I have already expressed the 
opinion that the tendency is in Australia likely to be 
rather towards consolidation than towards a relaxation 
of the Federal bond, because not only national senti- 
ment but economic influences also will work in that di- 
rection. Much however may depend on a factor still 
unpredictable, the relations between Australia, together 
with the British Empire generally, and the other Powers 
which are interested in the Western Pacific. Nothing 
does so much to draw together a people already homo- 
geneous as the emergence of issues which threaten, or 
result in, a struggle against foreign States. The senti- 
ment of internal unity is accentuated. Public attention 
is diverted from domestic controversies. Powers are 
willingly yielded to the Executive which would in days 
of peace be refused. The consequences may be good 
or evil — they have sometimes been in the long run evil 
— but either way they alter the character of the govern- 
ment. They may even give a new direction to its policy, 
as the United States has recently, and quite unexpect- 
edly, discovered. 

XXV. Future Relations of the Australian 
Commonwealth to Britain. 

Australia however is not a State standing alone in 
the world, but a member of the British Empire, so we 
cannot close an examination of her Constitution without 
asking whether the union of her Colonies will affect her 
relations to the mother country. 

When the first Convention to frame a Federal Con- 
stitution assembled in 1891, most Englishmen supposed 
that a Federated Australia would soon aspire to com- 
plete independence. Australian statesmen saw deeper, 
and predicted that the formation from the several Co- 
lonies of an Australian Nation would tend not to loosen, 



THE AUSTRALIAN COMMONWEALTH 461 

but rather to draw closer the ties that unite the people 
to Great Britain. So far as can be judged from the 
course of Australian opinion during the past ten years, 
this has been the result. There were at first some who 
advocated Federation as a means to independence. But 
they soon desisted, overborne by a different current. 
The same National feeling through which Federalism 
triumphed seems to have deepened the sense of unity 
with other members of the British race. And possibly 
that suspicion which colonies are apt to feel of a sort 
of patronage on the part of the mother country, and 
which sometimes disposes them to be self-assertive, may 
have vanished as they came to realize that the old coun- 
try was proud of them and wished to treat them not only 
as a daughter but as an equal. Neither do they, demo- 
crats as they are, harbour distrust of a monarchy, or 
deem their freedom in any way hampered by it. The love 
for republicanism in the abstract, though far stronger 
in Continental Europe than in England, was everywhere 
a force in the first half of the nineteenth century. It has 
faded away in the second half throughout the British 
world, because the solid substance of freedom has been 
secured, because the old mischiefs of monarchical gov- 
ernment have reappeared in republics, because men's 
minds have begun to be occupied with economic and 
social rather than with purely political questions. The 
fact that the British Crown is titular head of the Au- 
stralian Commonwealth will not render the working of 
the Constitution less truly popular, any more than has 
befallen in Canada, a somewhat less democratic country. 
So far as the internal politics of Australia are concerned, 
she will take her own course, scarcely affected by her con- 
nexion with England. But the fact that she is, and seems 
likely to remain, a part of the British Empire, sharing 
in the enterprises and conflicts and responsibilities of 
that vast body, is a fact of the highest moment for her 
future and for the future of the world. Still more mo- 
mentous might her relation to the Empire become 



462 TEE AUSTRALIAN COMMONWEALTH 

should any scheme be devised for giving the self-govern- 
ing Colonies of Britain a share in the financial liability 
for common defence, together with a voice in the deter- 
mination of a common foreign policy. The difficulties 
of constructing any constitutional machinery for this 
purpose are obvious, yet perhaps not insurmountable. 
Should any such arrangement be ever reached, it will 
probably be reached through some crisis in the history 
of the Empire itself. 

Sixty years ago it was generally believed that as soon 
as each British self-governing colony had become con- 
scious of its strength, it would naturally desire, and could 
not be refused, its independence. But the last sixty 
years have brought with them many favouring condi- 
tions ; and among these, one of which no one then 
thought, the long reign of a sovereign whose personal 
character, by its purity, simplicity and kindliness, won 
such reverence and affection, not only for herself, but 
also for the ancient institutions at the head of which 
she stood, that the prolongation of her life may be 
reckoned among the causes which have kept these far- 
off lands a part of the British realm and have given its 
actual form to the Commonwealth of Australia. 



IX 
OBEDIENCE 

The question which meets on the threshold of their 
inquiries all who have speculated on the nature of po- 
litical society and the foundations of law is this: What 
is the force that brings and keeps men under govern- 
ments? or, in other words, What is the ground of 
Obedience? 

I. Theories regarding Political Obedience. 

The answers given by philosophers to this question, 
while varying in form, group themselves under two main 
heads. Some assign Fear as the ground, some Reason. 
One school discovers the power that binds men to- 
gether as members of a State in Physical Force, acting 
upon them through the dread of death or other physical 
evil. The other conceives it to lie in a rational view of 
the common advantage, which induces men to consent 
of their own free-will to forgo some measure of their 
(supposed) original personal independence in order to 
obtain certain common benefits. Thus, while the former 
school finds the origin of law in Compulsion, the latter 
finds it in Agreement. 

Both schools are of high antiquity, and have been 
represented by many eminent names. One gathers from 
Plato that divers sophists maintained the former thesis. 
It is in substance not far from that assigned to Thrasy- 



464 OBEDIENCE 

machus in the Republic, where the Sophist says that Jus- 
tice is nothing but the advantage of the stronger ; and 
in later times Hobbes and Bentham are eminent among 
those who embrace it. The other view is most familiar 
to moderns from the writings of Rousseau ; but it has 
a long and interesting history, intertwined with that of 
the notions of the State of Nature and the Law of Na- 
ture, and also with the history of the conception of 
Sovereignty — topics which are discussed elsewhere in 
this volume. Rousseau grounds obedience on the origi- 
nal ' social contract,' whereby each and every person 
agrees with every other to forgo his natural freedom 
by constituting a State which is to act for all, and in 
which the citizen recovers his freedom because he is him- 
self a part of that ' general will ' to which he renders 
a reasonable service. The Aristotelian doctrine that 
men are by their very constitution sociable creatures, 
naturally drawn to create and to live in communities, 
comes nearer to the second view, while escaping by its 
generality of expression the errors into which those who 
set political society upon the foundation of contract have 
frequently been betrayed. And it need not be added that 
many other philosophers in comparatively modern times, 
basing the State, some of them on the nature of man, 
some on eternal reason or the will of God, have held 
that it thereby acquires an absolute right to obedience 
from its members. These speculations, however, seldom 
touch the particular point I propose to discuss here, viz. 
the grounds which actually dispose men to obedience. 

Of the two chief older theories, that which represents 
men as led by reason to enter into a Contract has of late 
fallen into discredit, being indeed so evidently opposed 
to what we know of the early state of mankind that it 
may be doubted whether most of those who propounded 
or have adopted it did not mean it to be taken rather as 
an apologue or mythical presentment of moral facts than 
as a piece of history. The theory of Force and Fear, on 
the other hand, has retained much of its vogue, having 



OBEDIENCE 465 

connected itself with a system of jurisprudential termino- 
logy which is, or lately was, influential in England and 
not unknown in America. According to Bentham and 
his followers, there is in every State a Sovereign who 
enjoys unlimited physical, and therefore also unlimited 
legal, power. His might makes his right. He rests on 
Force and rules by Fear. He has the sole right of issu- 
ing Commands. His Commands are Laws. They are 
enforced by Threats, and are obeyed in respect of the 
apprehension of physical harm to follow on disobedi- 
ence. Whether those who adhere to this body of doc- 
trine think it historically true as an account of the origin 
of law, or merely adopt it as a concise explanation and 
summary view of the principles on which modern law 
and highly developed forms of political society are based, 
is not always clear from the language they use. But the 
importance they attach to Force appears not only from 
the contempt they pour on the contractual theory of 
government, but also from their omission to refer to any 
facts in the character and habits of mankind except those 
which are connected with Force and Fear as factors in 
the development of the social organism. 

A little reflection will, however, convince any one who 
comes to the question with an open mind that both these 
theories, that of compulsion as well as that of contract, 
are alike incomplete, and, because incomplete, are mis- 
leading. They err, as all systems are apt to err, not by 
pointing to a wholly false cause, but by extending the 
efficiency of a true cause far beyond its real scope. 
Rousseau is right in thinking that political society needs 
a moral justification, and that the principle of individual 
freedom is best satisfied where every one obtains a 
share in the government to which he submits. The Con- 
tractualists generally may find a solid basis for authority 
in the fact that organized society does actually render 
to each of its members some return for the so-called 
' natural liberty ' which he has surrendered. Even a bad 
government gives him at least a measure of protection, 
30 



466 OBEDIENCE 

however imperfect, for his person and property against 
the attacks of any one but the government itself. Here 
there is, if not what we can call an implied contract, at 
least a consideration, a sort of mutuality of service in 
the political relation, for which each member gives some- 
thing, and from which each gains something. To go 
further, and either to explain the growth of government 
by a conscious bargain at some past moment, or to con- 
ceive the idea of such a bargain as present to the bulk 
of those who live in any actual society now, or to regard 
the individual members of society as entitled to act upon 
contractual principles towards their government and 
one another, is to plunge at once into what are not 
more palpably historical errors than unworkable prin- 
ciples. So also the school of Thrasymachus and that 
which claims Hobbes as its founder are right in feeling 
that some test must be found of the solidity of a com- 
munity and the actual working strength of its machi- 
nery; and they discover this in the fact that physical 
force is the ultima ratio wherewith to coerce the disturb- 
ers of the community and the transgressors of the law. 
Without force in the background, the law might be 
defied. It is when the men of this school, or some of 
them, go on to represent physical compulsion as the 
means by which communities have been in fact formed 
— though, to be sure, Hobbes himself alleges a contract 
as the very first step 1 — and Fear as the motive which 
in fact secures respect to the law from the majority of 
the citizens, that they depart alike from history and from 
common sense. The problem of political cohesion and 
obedience is not so simple as either school of theorists 
would represent it. 

To show that both schools are historically wrong 
would not be difficult. This has been often done as 
against such of the Contractualists as have held that 
conscious reason brought men out of the State of Na- 

1 See as to the doctrine of Hobbes, the Essay on Sovereignty which follows this 
Essay. 



OBEDIENCE 467 

ture by a compact ; and if the historians who deal with 
the earlier stages of human progress have not cared to 
demolish the Physical Force doctrine, this may have 
happened because none has thought it worth while to 
refute a theory whose flimsiness they have perceived, but 
which they have deemed to lie outside the sphere of his- 
tory. As it is the historian who best understands how 
much Force has done to build up States, so he most 
fully sees that Force is only one among many factors, 
and not the most important, in creating, moulding, ex- 
panding and knitting together political communities. 
It is not, however, necessary to institute any historical 
inquiry in order to reach this conclusion. An easier 
course is to interrogate one's own consciousness, and to 
observe one's fellow men. The problem of obedience to 
government and law is part of the larger and even more 
obvious problem of the grounds of Obedience in general. 
Why do we all forgo the gratification of many of our 
personal desires, desires in themselves harmless, merely 
because they are not shared by others ? Why do we go 
on echoing opinions whose soundness we more than 
doubt? Why do we pursue pleasures which give us no 
amusement, but rather weariness ? Why do we adhere 
to a party, political or ecclesiastical, of whose conduct 
we often disapprove? Why in fact is so large a part of 
our daily conduct determined, not by our own natural 
preferences, but by compliance with the opinion of others 
or submission to the social conditions that surround us ? 

II. The Grounds of Obedience in General. 

Political obedience is not a thing by itself, but a form 
of what may be called Compliance in general. 

The grounds or motives of Compliance can be summed 
up under five heads. Putting them in the order of what 
seems to be their relative importance, they may be de- 
scribed as the following — Indolence, Deference, Sym- 
pathy, Fear, Reason. Let us consider each separately. 



468 OBEDIENCE 

By Indolence I mean the disposition of a man to let 
some one else do for him what it would give him trouble 
to do for himself. There are of course certain persons 
to whom exertion, mental as well as physical, is pleasura- 
ble, and who delight in the effort of thinking out a pro- 
blem and making a decision for themselves. There are 
also moments in the lives of most of us when under the 
influence of some temporary excitement we feel equal to 
a long succession of such efforts. But these are excep- 
tional persons and rare moments. To the vast ma- 
jority of mankind nothing is more agreeable than to 
escape the need for mental exertion, or, speaking more 
precisely, to choose only those forms of exertion which 
are directly accompanied by conscious pleasure and 
involve little fatigue. In a great many exertions of 
thought resulting in determinations of the will there 
is no pleasure, or at any rate no conscious pleasure, 
or at any rate no pleasure which is not outweighed 
by an accompanying annoyance. Such exertions may 
relate to things in which we have slight personal 
interest, and therefore no desires to gratify, or to 
things in which our personal interest is so doubt- 
ful that we shrink from the trouble of ascertain- 
ing which way it lies, and are glad to shift the respon- 
sibility from ourselves to whoever will undertake it for 
us. The ascendency of one of a married couple, for in- 
stance, or of one member of a group of persons living 
together, is usually acquired in some such way. It is not 
necessarily the will really strongest that in these cases 
prevails, but the will which is most active, most ready to 
take a little trouble, to exert itself on trivial occasions 
and undertake small responsibilities. Persons of a reso- 
lute and tenacious character are sometimes also hesi- 
tating and undecided, because they cannot be at the 
trouble of setting to work, for the little questions of daily 
life, their whole machinery of deliberation and volition. 
In five persons out of six the instinct to say Yes is 
stronger than the instinct to say No — were it not so, 



OBEDIENCE 469 

there would be fewer marriages — and this is specially 
so when the person who claims consent possesses ex- 
ceptional force and self-confidence. In other words, 
most of us hate trouble and like to choose the line of least 
resistance. In tropical Africa the country is covered by 
a network of narrow footpaths, made by the natives. 
These paths seldom run straight, and their flexuosities 
witness to small obstacles, here a stone and there a 
shrub, which the feet of those who first marked them 
avoided. To-day one may perceive no obstacle. The 
prairie which the path crosses may be smooth and open, 
yet every traveller follows the windings, because it is 
less trouble to keep one's feet in the path already marked 
than it is to take a more direct route for one's self. The 
latter process requires thought and attention ; the for- 
mer does not. 

Nor is the compliance of indolence less evident in 
thought than in action. To most people, nothing is 
more troublesome than the effort of thinking. They are 
pleased to be saved the effort. They willingly accept 
what is given them because they have nothing to do 
further than to receive it. They take opinions presented 
to therm and assume rules or institutions which they 
are told to admire to be right and necessary, because 
it is easier to do this than to form an independent judge- 
ment. The man who delivers opinions to others may 
be inferior to us in physical strength, or in age, or in 
knowledge, or in rank. We may think ourselves quite 
as wise as he is. But he is clear and positive, we are 
lazy or wavering ; and therefore we follow him. 

Under the name of Deference it is convenient to in- 
clude the various cases in which some emotion, draw- 
ing one person to another, disposes the former to comply 
with the will of the latter. Whether the emotion be 
love, or reverence, or esteem, or admiration, a persua- 
sion of superior goodness or of superior wisdom, there 
is a feeling on the part of the person attracted which 
makes him ready to sacrifice his own impulses, if they 



470 OBEDIENCE 

be not of unusual strength, to the will of the person 
loved or reverenced or admired. Wisdom and goodness 
give their possessor a legitimate authority, wisdom in 
making him appear as a fit person to follow where the 
question is of choosing means, goodness where it is a 
question of the choice of ends ; and the belief that these 
qualities exist in the person revered or esteemed is just 
as effective as the reality, such belief being obviously 
the result of many causes besides a rational scrutiny. 
The force of the feeling of deference in securing com- 
pliance or adhesion varies in different nations and in 
different states of society. The advantages, for instance, 
which rank, wealth and learning give to a candidate for 
any public post in a modern country like France or Eng- 
land, only faintly represent the authority which belonged 
to birth, learning and sanctity, whether real or supposed, 
in simpler times. A so-called holy man in the Musulman 
or Hindu East, a Fakir or a Guru, exerts to-day enor- 
mous power in his own neighbourhood, in respect far 
less of any fear of the harm he can do than simply of the 
veneration he inspires. Even if he does not claim a di- 
rect supernatural mission, his words carry great weight. 
And there is abundant evidence in the careers of famous 
Europeans in the East to show how readily in primitive 
times a remarkable character and career would perma- 
nently attach a halo, not only of admiration but of sub- 
missive deference, to the descendants of such a person 
or to the occupant of the office he had filled. 

By Sympathy as a ground of obedience I mean not 
merely the emotion evoked by the sight of a corre- 
sponding emotion in another, but the various forms of 
what may be called the associative tendency of mankind, 
the disposition to join in doing what one sees others 
doing, or in feeling as others feel. The root of this in- 
stinct lies very near Indolence ; for no way of saving 
effort is so obvious as to do what others have done or 
are doing; but it is not quite the same thing as Indo- 
lence, for it is a tendency strong among some of the less 



OBEDIENCE 471 

indolent races of mankind, and each of us must have 
noted from his own personal experience that its action 
depends as much upon the susceptibility of the imagina- 
tion as upon the slowness or slackness of the will. There 
is hardly a more potent factor than this in the formation 
of communities, whether social or political, because it 
unites with, if it be not almost identical with, what we 
call party and civic spirit, substituting a sense of and a 
pleasure in the exercise of the collective will for the 
pleasure of exerting the individual will, and thus tending 
to subordinate the latter, and to make it rejoice in fol- 
lowing, perhaps blindly, the will which directs the com- 
mon action. The shock to individual pride is avoided, 
because each man acts spontaneously, at the bidding of 
his own emotion, and each feels that what he may lose 
as an individual he recovers as a member of the body, 
and that with a better chance of indulging his passions 
at the expense of his antagonists. The spirit of the body 
seems to live in and inspire him, increasing indefinitely 
the force of his own personality. Obedience to the di- 
recting authority is here a first necessity, and becomes 
the more implicit the greater the dangers of whatever 
enterprise the body may undertake. As fighting covers 
great part of the life of primitive communities, the dis- 
position to obey becomes early strong among them, be- 
cause in nothing is obedience so essential as in war. 

Perhaps these three sources of the tendency to comply 
are really only forms of, as they are certainly all closely 
connected with, the disposition to imitate which is so 
strong, not only in man, but throughout the animal 
kingdom, so far as we can observe it. When ninety- 
nine sheep one after another jump over a fence at pre- 
cisely the point where the first of the flock has jumped 
it, they reveal a propensity similar to that which makes 
a file of savages travelling over a wilderness each tread 
in the footsteps of his predecessor, or that which soon 
stamps the local accent upon the tongue of a child 
brought from some other part of the country, where the 



472 OBEDIENCE 

mode of speech was different. There is evidently a psy- 
chological, doubtless indeed a physiological, cause for 
this general and powerful tendency to reproduce the 
acts and ways of other creatures, even where, as in the 
case of a local accent, there is no motive whatever for 
doing so. Conscious imitation is of course frequently 
explainable by the desire to please, or by a perception 
of the advantage of doing as others do. But there are 
many facts to show that its roots lie deeper and that it 
is due largely to a sympathy between the organs of per- 
ception and those of volition, which goes on in uncon- 
scious or subconscious states of the mind, and which 
makes the following of others, the reproduction of their 
acts, or the adoption of their ideas, to be the path of least 
resistance, which is therefore usually followed by weaker 
natures, and frequently even by strong ones. 

Of Fear and of Reason nothing need be said, because 
the school of Hobbes and Bentham for the one, and 
the apostles of democratic theory for the other, have 
said more than all that is needed to show the part they 
respectively play in political society. Fear is no doubt 
the promptest and most effective means of restraining 
the turbulent or criminal elements in society; and is of 
course the last and necessary expedient when authority 
either legally established or actually dominant is threat- 
ened by insurrection. Reason operates, and operates 
with increasing force as civilization advances, upon the 
superior minds, leading them to forgo the assertion of 
their own wills even where such assertion would be in 
itself innocent or beneficial, merely because the authority 
which rules in the community has otherwise directed. 
Reason teaches the value of order, reminding us that 
without order there can be little progress, and preaches 
patience, holding out a prospect that evils will be 
amended by the general tendency for truth to prevail. 
Reason suggests that it is often better that the law 
should be certain than that it should be just, that an 
existing authority should be supported rather than that 



OBEDIENCE 473 

strife should be caused by the attempt to set up a better 
one. So also Reason disposes minorities to acquiesce 
even where a majority is tyrannical, in the faith that 
tyranny will provoke a reaction and be overthrown by 
peaceable discussion. 

Allowing for the efficacy of Fear as a motive acting 
powerfully upon the ruder and more brutish natures, and 
for that of Reason as guiding the more thoughtful and 
gentle ones, and admitting that neither can be dispensed 
with in any community, their respective parts would 
nevertheless seem to be less important than are the 
parts played by the three first-mentioned motives. If 
it were possible either in the affairs of the State, or in the 
private relations of life, to enumerate the number of in- 
stances in which one man obeys another, we should find 
the cases in which either the motive of Fear or the mo- 
tive of Reason was directly and consciously present to 
be comparatively few, and their whole collective pro- 
duct in the aggregate of human compliance compara- 
tively small. If one may so express it, in the sum total 
of obedience the percentage due to Fear and to Reason 
respectively is much less than that due to Indolence, and 
less also than that due to Deference or to Sympathy. 

In a large proportion of the cases arising in private 
life the motive of Fear cannot be invoked at all, because 
there is no power of inflicting harm ; and Reason just 
as little, because the persons who habitually apply ratio- 
cinative processes to their actions are after all few. It 
may be said that conscious thought is not ordinarily ap- 
plied to action because Habit supplies its place, and 
Habit, enabling and disposing us to do without con- 
sideration the acts which otherwise would need to be 
considered, is in fact fossil reason. That is largely so, 
but Habit is still more often the permanent and unchang- 
ing expression of Indolence. Nothing becomes a habit 
so quickly as does the acquiescence due to Indolence, 
nor does any tendency strike its roots so deep. And 
though it is true as regards public or civic matters that 



474 OBEDIENCE 

physical force is always at hand in the background, we 
must also recognize that the background is not in fact 
usually visible to the majority of those who act accord- 
ing to the laws which they obey. They do not neces- 
sarily, nor even generally, think of the penalties of the 
law. They defer to it from respect and because other 
people defer ; they are glad that it is there to save them 
and other people from trouble. This attitude is not 
confined to civilized States, but has existed always, even 
in unsettled societies, where the law might not be able 
to prevail but for the aid of private citizens. 

Of the three springs of Obedience which have been 
represented as on the whole the stronger, Indolence 
disguises itself under Deference and Deference is inten- 
sified by Sympathy ; that is to say, the tendency of men 
to let others take decisions for them which they might 
take for themselves becomes much stronger and more 
constant when they have any ground for believing others 
to possess some sort of superiority, while the disposition 
to admit superiority is incomparably more active where 
a number of other persons are perceived to be also ad- 
mitting it. A society like that in which modern men 
live in England or America is apt to suppose that the 
admission of superiority mortifies a man's pride, but 
this is so far from being generally true that the attitude 
of submission is to most men rather pleasurable than 
the reverse. So Protestants have been apt to assume 
that the natural and normal attitude of man in religious 
matters is independence — a wish to seek out truth for 
himself, a sense of the duty of consulting his own con- 
science ; whereas the opposite is the fact, and those re- 
ligious systems take the greatest hold upon man which 
leave least to individual choice and inculcate, not merely 
humility towards the Unseen Powers, but the duty of 
implicitly accepting definite traditions or of revering and 
following visible ecclesiastical guides. 

Some philosophers have talked of Will as the distinc- 
tive note of Man — and in so far as the exercise of Will 



OBEDIENCE 475 

implies a conscious exertion of rational choice it may be 
admitted to be characteristic of him alone. But in mere 
tenacity of purpose and persistence in a particular course 
other animals run him hard. A rogue elephant or a 
bucking mustang can show as much persistence, some- 
times mingled with a craft which seeks to throw the op- 
ponent off his guard, and bides its time till the most 
favourable moment for resistance arrives. In most men 
the want of individual Will — that is to say, the proneness 
to comply with or follow the will of another — is the spe- 
cially conspicuous phenomenon. It is for this reason 
that a single strenuous and unwearying will sometimes 
becomes so tremendous a power. There are in the 
world comparatively few such wills, and when one ap- 
pears, united to high intellectual gifts, it prevails which- 
ever way it turns, because the weaker bow to it and 
gather round it for shelter, and, in rallying to it, increase 
its propulsive or destructive power. It becomes almost 
a hypnotizing force. One perceives this most strikingly 
among the weaker races of the world. They are not 
necessarily the less intelligent races. In India, for in- 
stance, an average European finds many Hindus fully 
his equals in intelligence, in subtlety, and in power of 
speech; but he feels his own volitions and his whole 
personality to be so much stronger than that of the great 
bulk of the native population (excluding a very few 
races) that men seem to him no more than stalks of corn 
whom he can break through and tread down in his on- 
ward march. This is how India was conquered and is 
now held by the English. Superior arms, superior dis- 
cipline, stronger physique, are all secondary causes. 
There are other races far less cultivated, far less subtle 
and ingenious, than the Hindus, with whom Europeans 
have found it harder to deal, because the tenacity of pur- 
pose and the pride of the individual were greater. This 
is the case with the North-American Indians, who 
fought so fiercely for their lands that it has been esti- 
mated that in the long conflict they maintained they have 



476 OBEDIENCE 

probably killed more white men than they have lost at 
the hands of the whites. Yet they were far inferior in 
weapons and in military skill ; and they had no religious 
motives to stimulate their valour. 

No one can read the history of the East without being 
struck by the extraordinary triumphs which a single 
energetic will has frequently achieved there. A military 
adventurer, or the chief of a petty tribe, suddenly rises 
to greatness, becomes the head of an army which attacks 
all its neighbours, and pursues a career of unbroken 
conquest till he has founded a mighty empire. Perhaps 
he raises vast revenues, constructs magnificent works, 
establishes justice, creates a system of administration 
which secures order and peace during his lifetime. Men 
like Thothmes III, Cyrus, and Darius son of Hystaspes, 
Khosroes Anushirwan, Saladin, Tamerlane, Baber, 
Akbar the Great, Hyder Ali are in their several ways 
only the most striking instances of the tremendous effect 
which a man of exceptional force and activity produces 
among Oriental peoples 1 . One asks why this happens 
chiefly in the East. Is there a greater difference in 
Asiatic than in European peoples between the few most 
highly-gifted men and the great mass of humanity, so 
that where the ordinary characters are weak one strong 
character prevails swiftly and easily? Or is the cause 
rather to be sought in the fact that in the East there are 
no permanent institutions of government to be over- 
thrown? That which is strong and permanent there — 
viz. the customs, religious and legal, of the people — a 
ruler does not (except in a fit of insanity) venture to 
touch, while the thrones of neighbouring potentates go 
down at a stroke before him. In mediaeval and modern 
Europe, the weakness of the ordinary man was and is 
entrenched behind a fabric of government and law, which 
the strongest individual will cannot overthrow; and it is 

1 Some of these succeeded to thrones already established, but their careers illus- 
trate none the less the results effected by brilliant gifts appearing in the midst of a 
comparatively inert people. 



OBEDIENCE 477 

only when this fabric has been shattered by a revolution, 
as happened in France at the end of the eighteenth cen- 
tury, that the adventurer of genius and volition has a 
chance of rivalling the heroes of the East. 

Thus the comparative stability of governments in 
mediaeval and modern Europe does not disprove the 
view which finds in the force of individual will, and the 
tendency of average men to yield to it, a potent factor 
in compelling obedience. For in the European countries 
the resistance offered to the ambition of such a will is 
effective, not so much because ordinary men are them- 
selves more independent and more capable of opposition 
as because their superior intelligence has built up well- 
compacted systems of polity to which obedience has by / 
long habit become attached. Traditions of deference 
and loyalty have grown up around these systems, so that 
they enable individuals to stand firmly together, and con- 
stitute a solid bulwark against any personality less force- 
ful than that of a Julius Caesar or a Buonaparte. 

To this explanation one may perhaps add another. 
In the East the monarch is as a rule raised so far above 
his subjects that they are all practically on a level, as 
compared with him ; and those who are for the moment 
powerful are powerful in virtue of his favour, which has 
elevated and may at any moment abase them. This has 
long been the case in Musulman States, and was to a 
large extent true even in the Byzantine Empire. It is 
in some degree true in Russia now. Where there is no 
land-holding or clan-leading aristocracy, nor any richly 
endowed hierarchy, there may be nothing to diminish 
the impression of overwhelming power which the sove- 
reign's position produces. Hence there may be no order 
of men to set the example of an independence of feeling 
and attitude which springs from their position as the 
leaders of their dependents and as entitled to be con- 
sulted by the Crown. Such an order of men existed in 
the feudal aristocracy of the Middle x\ges, who have 
done much to create a type of character in the States of 



478 OBEDIENCE 

modern Europe. To them has now succeeded, in some 
modern countries, a so-called aristocracy of wealth, 
which, vain as it may be of its opportunities for influ- 
encing others, is much less stable than was the land- 
holding class of old days, and much less high-spirited. 
Meanwhile the general levelling down and up which has 
created what we call modern democracy has, in reducing 
the number of those whom rank and tradition had made 
' natural leaders,' increased the opportunities of strong- 
willed and unscrupulous men, restless and reckless, 
versed in popular arts, and adroitly using that most 
powerful of all agents for propagating uniformity of 
opinion which we call the newspaper press, powerful be- 
cause it drives the individual to believe that if he differs 
from the mass he must be wrong. Such a man may have 
a career in a huge democracy which he could not have 
had a century ago, because the forces that resist are 
fewer and feebler to-day than they were then, and the 
multitude is more easily fascinated by audacity or force 
of will, apart from moral excellence, apart from intel- 
lectual distinction, than is an aristocratic society. 

It may help to explain the theory I am trying to pre- 
sent if we pause for a moment to examine the influences 
under which the habit of obedience is first formed in the. 
individual man and in the nascent community. For the 
individual, it begins in the Family ; and it grows up there 
only to a small extent by the action of Force and Fear. 
The average child, even in the days of a discipline 
harsher than that which now obtains, did not as a rule 
act under coercion, but began from the dawn of con- 
sciousness to comply with the wish of the parent or the 
nurse, partly from the sense of dependence, partly from 
affection, partly because it saw that other children did 
the like. Force might sometimes be resorted to; but 
force was in most cases a secondary and subsidiary 
agency. Nor did force succeed so well as softer methods. 
Everybody knows that the children who have been most 
often punished are not the most obedient, nor is this 



OBEDIENCE 479 

merely because, being naturally self-willed, they have 
needed more correction. After those little squalls of 
aimless passion which belong to a certain period in the 
child's life have passed away, the boy usually moves as a 
matter of course at his parents' bidding until the age is 
reached when circumstances oblige him to act for him- 
self, or when the sense of independence is stimulated 
by perceiving that others of his own age will despise him 
if he remains too submissive. The child whose constant 
impulse is to disobey is as likely to turn out ineffective 
as the child who obeys too readily ; for perversity is as 
frequently due to want of affection, sympathy and com- 
mon sense as to exceptional force of will. 

Thus most people enter adult life having already 
formed the habit of obeying in many things where Force 
and Fear do not come in at all, but in which the most 
obvious motive is the readiness to be relieved of trouble 
and responsibility by following the directions of some 
one else, presumably superior. They have also formed 
during boyhood the habit of adopting the opinions of 
those around them. An acute observer has said that the 
chief fault of the English public school is that it makes 
this habit far too strong. Custom — that is to say, what- 
ever is established and obeyed — has great power over 
them. No conservatism surpasses that of the schoolboy. 

It would not be safe to try to find a general explana- 
tion of the growth of political communities in the pheno- 
mena of domestic life, though it was a favourite doctrine 
of a past generation that the germ or the type of the 
State was to be found in the Family. There are some 
races among whom the Family and its organization seem 
to have played no great part. But it is clear that in 
primitive societies three forces, other than Fear, have 
been extremely powerful — the reverence for ancient line- 
age, the instinctive deference to any person of marked 
gifts (with a disposition to deem those gifts superna- 
tural), and the associative tendency which unites the 
members of a group or tribe so closely together that the 



480 OBEDIENCE 

practice of joint action supersedes individual choice. 
These forces have imprinted the habit of obedience so 
deeply upon early communities that it became a tra- 
dition, moulding the minds of succeeding generations. 
Physical force had plenty of scope in the strife of clans 
or cities, or (somewhat later) of factions, with one an- 
other ; but in building up the clan or the city it was hardly 
needed, for motives more uniform and steady in their 
efficiency were at work. To pursue this topic would lead 
us into a field too wide for this occasion; yet it is well 
to note two facts which stand out in the early history of 
those communities in which Force and Fear might seem 
to have had most to do with the formation of govern- 
ments, and of the habit of obedience to authority. One 
is the passionate and persistent attachment to a par- 
ticular reigning family, apart from their personal gifts, 
apart from their power to serve the community or to 
terrify it. The Franks in Gaul during the seventh and 
eighth centuries were as fierce and turbulent a race as 
the world has ever seen. Their history is a long record 
of incessant and ferocious strife. From the beginning 
of the seventh century the Merwing kings, descendants 
of Clovis, became, with scarcely an exception, feeble and 
helpless. Their power passed to their vizirs, the Mayors 
of the Palace, who from about a.d. 638 onwards were 
kings de facto. But the Franks continued to revere the 
blood of Clovis, and when, in 656, a rash Mayor of the 
Palace had deposed a Merwing and placed his own son 
on the throne, they rose at once against the insult offered 
to the ancient line ; and its scions were revered as titular 
heads of the nation for a century longer, till Pippin the 
Short, having induced the Pope to pronounce the de- 
position of the last Merwing and to sanction the transfer 
of the crown to himself, sent that prince into a mona- 
stery. This instance is the more remarkable because the 
Franks, being Christians in doctrine if not in practice, 
can hardly have continued to hold the divine origin of 
their dynasty. 



OBEDIENCE 481 

The other fact to be dwelt upon is this, that where 
religion comes into the matter we discover an associa- 
tive tendency of immense strength, which binds men into 
a community, and wins obedience for those who, whether 
as priests or as kings, embody the unity of the com- 
munity, who represent its collective relation to the Un- 
seen Powers, who approach them with its collective ser- 
vice of prayers or sacrifice. Altars have probably done 
even more than hearths to stimulate patriotism, espe- 
cially among those who, like the Romans, had a sort of 
domestic altar for every hearth, and kept up a worship 
of family and clan spirits beside the worship of the na- 
tional gods. It may be said that the power of religion 
in welding men together and inducing them to obey 
kings or magistrates or laws is due to the element of 
Fear in religion. Such an element has no doubt been 
at work, but its influence is more seen in the requirement 
of sacrifices to the deities themselves than in enforcing 
obedience to the authorities and institutions of the State. 
What commends these latter to reverence is rather the 
belief that their divine appointment gives them a claim 
on the affection of the citizens, and makes it a part of 
piety as well as of patriotism to support them. In the 
Old Testament, for instance, the love of Jehovah, and 
the sense of gratitude to Him for His favours to His 
people, are motives invoked as no less potent than the 
dread of His wrath. There has always been a tendency, 
since Christianity lost its first freshness and power, to 
insist upon the more material motives, upon those 
which appear palpable and ponderable, such as the fear 
of future punishment, rather than on those of a more 
refined and ethereal quality. But it was not by appealing 
to these lower motives that Christianity originally made 
its way in the Roman Empire. The element of Fear, 
though not wholly absent from the New Testament, 
plays a very subordinate part there, and became larger 
in mediaeval and modern times. Yet it may be doubted 
whether, in growing stronger, it increased the efficiency 
31 



482 OBEDIENCE 

of Christianity as an engine of moral reform. ' Perfect 
love casteth out fear.' It was the gospel of love, and 
not the fear of hell, that conquered the world, and made 
men and women willing to suffer death for their faith. 
The martyrs in the persecutions under Decius and Dio- 
cletian, and the Armenian martyrs of 1895, who were 
counted by thousands, overcame the terror of impend- 
ing torture and death, not from any thought of penalties 
in a world to come, but from the sense of honour and 
devotion which forbade them to deny the God whom 
they and their parents or forefathers had worshipped. 

Returning to the general question of the disposition 
of the average man to follow rather than to make a 
path for himself, it may be remarked that the abstract 
love of liberty, the desire to secure self-government for 
its own sake, apart from the benefits to be reaped from 
it, has been a comparatively feeble passion, even in 
nations far advanced in political development. It is not 
easy to establish this proposition by instances, because 
wherever arbitrary power is exercised, there are pretty 
certain to be tangible grievances as well as a denial of 
liberty, and where a monarch, or an oligarchy, attempts 
to deprive a people of the freedom they have enjoyed, 
they conclude, and with good reason, that oppression 
is sure to follow. But when the sources of insurrections 
are examined, it will be almost always found that the 
great bulk of the insurgents were moved either by the 
hatred of foreign domination, or by religious passion, or 
by actual wrongs suffered. Those who in drawing the 
sword appeal to the love of liberty and liberty only are 
usually a group of persons who, like the last republicans 
of Rome, are either exceptional in their sense of dignity 
and their attachment to tradition, or deem the predo- 
minance of a despot injurious to their own position in 
the State. So we may safely say that rebellions and revo- 
lutions are primarily made, not for the sake of freedom, 
but in order to get rid of some evil which touches men 
in a more tender place than their pride. They rise 



OBEDIENCE 483 

against oppression when it reaches a certain point, such 
as the spoiling of their goods by the tax-gatherer, the 
invasion of their homes by the minions of tyranny, the 
enforcement of an odious form of worship, or perhaps 
some shocking deed of cruelty or lust. Once they have 
risen, the more ardent spirits involve the sacred name of 
liberty and fight under its banner. But so long as the 
government is fairly easy and tolerant, the mere denial 
of a share in the control of public affairs is not acutely 
resented, and a great deal of paternally regulative despo- 
tism is acquiesced in. 

In a.d. 1863, when Bismarck was flouting the Prus- 
sian Parliament, Englishmen were surprised at the cool- 
ness with which the Prussian people bore the violations 
of their not too liberal constitution. The explanation 
was that the country was well governed, and the struggle 
for political power did not move peasants and trades- 
men otherwise contented with their lot. The English 
were a people singularly attached to their ancient politi- 
cal and civil rights, yet Charles the First might -probably 
have destroyed the liberties of England, and would al- 
most certainly have destroyed those of Scotland, if he 
had left religion alone. One of the few cases that can be 
cited where a great movement sprang from the pure love 
of independence is the migration of the chieftains of 
Western Norway to Iceland in the ninth century, rather 
than admit the overlordship of King Harold the. Fair- 
haired. But even here it is to be remembered that Ha- 
rold sought to levy tribute: and the Norsemen were of all 
the races we know those in whom the pride of personal- 
ity and the spirit of independence glowed with the hot- 
test flame. 

There are even times when peoples that have enjoyed 
a disordered freedom tire of it, and are ready to wel- 
come, for the sake of order, any saviour of society who 
appears, an Octavianus Augustus or even a Louis Na- 
poleon. The greatest peril to self-government is at all 
times to be found in the want of zeal and energy among 



484 OBEDIENCE 

the citizens. This is a peril which exists in democracies 
as well as in despotisms. Submission is less frequently 
due to overwhelming force than to the apathy of those 
who find acquiescence easier than resistance. 

Two questions arising out of the view that has been 
here presented regarding the main sources of Obedience 
remain to be considered. 

One of these, that which bears upon the theory of 
jurisprudence as a science, being somewhat technical, 
had better not be suffered to interrupt the course of the 
general argument. I have therefore relegated it to a 
note at the end of this essay. 

III. The Future of Political Obedience. 

The other question which deserves to be examined 
is a much wider one. We have inquired what have 
been the grounds of Obedience in the past, and how it 
has worked in consolidating political society. We have 
seen that political society has depended upon the natural 
inequality in the strength of individual wills and in the 
activity of individual intellects, so that the weaker have 
tended to follow and shelter themselves behind the 
stronger, not so much because the stronger have com- 
pelled them to do so as because they have themselves 
wished to do so. But the conditions of human life and 
society have of late years greatly changed, and are still 
continuing to change, in the direction of securing wider 
scope for independence of thought and action. Society 
has become orderly, and physical violence plays a smaller 
and a steadily decreasing part. The multitude, in most 
of the civilized and progressive countries, can, if and 
when it pleases, exercise political supremacy through 
its voting power. There is very much less distinction 
of ranks than formerly, so that even those who dislike 
social equality are obliged to profess their love for it. 
And the opportunities of obtaining knowledge have be- 
come infinitely more accessible than they were even a 



OBEDIENCE 485 

century ago. Changes so great as these must surely — 
though of course they cannot alter the fundamental facts 
of human nature — modify the working of the tendencies 
and habits which man shows in political society. How 
far, then, are they likely to modify the tendency to Obe- 
dience, and in what way ? In other words, What will be 
the relation of Obedience to democracy and to social 
equality? 

It used to be believed, perhaps it is still generally be- 
lieved, that with the advance of knowledge, the develop- 
ment of intelligence, and the accumulation of human ex- 
perience, Obedience must necessarily decline, and that 
therewith governmental control will decay or be deemed 
superfluous, the good sense of mankind coming in to do 
for themselves what authority has hitherto done for 
them. The familiar phrase ' Anarchy plus a street con- 
stable ' was employed to describe the ideal of a govern- 
ment restricted to the fewest possible functions, as that 
ideal was cherished by the lovers of liberty and the 
apostles of laissez-faire. There is even a school count- 
ing among its members, besides a few assassins, many 
peaceful and tender-hearted theorists, men of high per- 
sonal excellence, which maintains that all the troubles 
of the world spring from the effort of one man, or a 
group of men, or the general mass of a people, to regu- 
late the relations and guide the conduct of individuals. 
To this school all forms of government are pretty nearly 
equally bad, and a Czar, though a more conspicuous 
mark for denunciation, is scarcely worse than is a 
Parliament. 

The answer to this view, which is attractive, not merely 
because it is paradoxical, but because it is a protest 
against some really bad tendencies of human society, 
and whose ideal, however unattainable, offers larger 
prospects of pleasure than does that of the ultra-regu- 
lators, seems to be that Obedience is an instinct of 
human nature too strong and permanent to be got rid of, 
and that the extinction of the State machinery which 



486 OBEDIENCE 

rules by this instinct, and when necessary enforces its 
own authority by the strong arm, would not really secure 
freedom to the weak though it might facilitate oppres- 
sion by the strong. To assume that human nature will 
change as soon as provisions for State compulsion have 
been withdrawn is to misread human nature as we have 
hitherto known it. Organizations there will be and must 
be, even if existing governments come to an end: and 
every organization implies obedience, not only because 
large enterprises cannot otherwise be worked, but also 
because the direction, necessarily committed to a few, 
forms in those few the habit of ruling and disposes 
others to accept their control. The decline of respect 
for the State, or even the growth of a habit of disobe- 
dience to State authorities, so far from implying a de- 
cline in the motives and forces which produce obedience 
generally, may indicate nothing more than that people 
have begun to obey some other authorities, and so il- 
lustrate our proposition that the obedience rendered to 
authorities commanding physical force is not always 
nor necessarily the promptest and the heartiest. New 
forms of social grouping and organization are always 
springing up, and in these, if they are to strive for and 
attain their aims, discipline is essential, because it is 
only thus that success in a struggle can be won. To 
keep men tightly knit together power must be lodged 
in few hands, and the rank and file must take their orders 
from their officers. Such submission, due at starting 
partly no doubt to reason, which suggests motives of 
interest, but largely also to deference and to sympathy, 
with fear presently added, soon crystallizes into a habit. 
Any one who will watch any considerable modern move- 
ment or series of movements outside the State sphere 
will perceive how naturally and inevitably guidance falls 
into a few hands, and how largely success depends on 
the discipline which those who guide maintain among 
those who follow; that is to say, on the uniformity and 
readiness of obedience, and on the strength of the asso- 



OBEDIENCE 487 

ciative habit which makes them all act heartily together. 
Whether it be a political party, or an ecclesiastical move- 
ment, or a combination of employers or of workmen, the 
same tendencies appear, and victory is achieved by the 
same methods. 

I will name in passing three very recent instances, 
drawn from the country in which it might be supposed 
that subordination was least likely to be found, because 
the principles of democracy and equality have had in it 
the longest and the fullest vogue. One is to be found 
in the Boss system in American politics. Such party 
chieftains as Mr. Croker in New York City, Mr. Cox 
in Cincinnati, and the well-known masters of the Re- 
publican party in the great States of Pennsylvania and 
New York, wield a power far more absolute, far more 
unquestioned, than the laws of the United States permit 
to any official. One must go to Russia to find anything 
comparable to the despotic control they exert over fel- 
low citizens who are supposed to enjoy the widest free- 
dom the world has known. A second is supplied by the 
American trade unions, in which a few leaders are per- 
mitted by the mass of their fellow workmen to organize 
combinations and to direct strikes as practical dictators. 
A trade union is a militant body, and the conditions of 
war make the leader all-powerful. The third is to be 
found in the American Trusts or great commercial cor- 
porations, aggregations of capital which embrace vast 
industries and departments of trade employing many 
thousands of work-people, and which are controlled by 
a very small number of capable men. Modern com- 
merce, like war, suggests the concentration of virtually 
irresponsible power in a few hands. 

Whether we examine the moral constitution of man 
or the phenomena of society in its various stages, we 
shall be led to conclude that the theoretic democratic 
ideal of men as each of them possessing and exerting 
an independent reason, conscience, and will, is an ideal 
too remote from human nature as we know it, and from 



488 OBEDIENCE 

communities as they now exist, to be within the horizon 
of the next few centuries, perhaps of all the centuries 
that may elapse before we are covered by the ice-fields 
again descending from the Pole or are ultimately en- 
gulfed in the sun. 

What, then, is the most that a reasonable optimist 
may venture to hope for? He jwill hope that 'the 
masses ' of democratic countries in the future, since they, 
like ourselves, must follow a small number of leaders, 
will ultimately reach a level of intelligence, public spirit 
and probity which will enable them to select the right 
leaders, will make the demagogue repulsive, will secure 
their deference for those whose characters and careers 
they can approve, and will so far control the associative 
instinct as to cause their adhesion to party to be gov- 
erned by a moral judgement on the conduct of the party. 
The masses cannot have either the leisure or the capa- 
city for investigating the underlying principles of policy 
or for mastering the details of legislation. Yet they 
may — so our optimist must hope — attain to a sound per- 
ception of the main and broad issues of national and in- 
ternational policy, especially in their moral aspects, a 
perception sufficient to enable them to keep the nation's 
action upon right lines. For the average man to do 
more than this seems scarcely more possible than that 
he should examine religious truth for himself, scrutiniz- 
ing the Christian evidences and reaching independent 
conclusions upon the Christian dogmas. This is what 
the extreme Protestant theory, which exalted human 
reason in the religious sphere no less than democratic 
theory did in the political sphere, has demanded, and 
indeed must demand, from the average man. But how 
many Protestants seek to rise to it? Many of those 
who grew up under the influence of that inspiriting 
theory can recall the disappointment with which, be- 
tween twenty and thirty years of age, they came to per- 
ceive that the ideal was unattainable for themselves, 
and that they must be content to form and live by such 



OBEDIENCE 489 

views of the meaning of the Bible and of the dogmas held 
to be deducible therefrom as a reliance on the opinions 
of the highest critical authorities and of their own wisest 
friends, coupled with their own limited knowledge of 
history and with the canons of evidence which they 
had unconsciously adopted, enabled them to form. Even 
this, however, has seemed to most of those who have 
passed through such an experience to be better than a 
despairing surrender to ecclesiastical authority. 

So the optimist aforesaid may argue that the future 
for which he hopes will represent, not indeed the ideal 
which democracy sets up, yet nevertheless an advance 
upon any government the world has yet seen, except per- 
haps in very small communities or for a brief space of 
time. 

The doctrine that the natural instinct and passion of 
men was for liberty, because every human being was a 
centre of independent force, striving to assert itself; 
the doctrine that political freedom would bring mental 
independence and a sense of responsibility ; that educa- 
tion would teach men, not only to prize their political 
rights, but also to use them wisely — this doctrine was 
first promulgated by persons of exceptional vigour, ex- 
ceptional independence, exceptional hopefulness. These 
were the qualities that made such men idealists and re- 
formers : and they attributed their own merits to the 
general body of mankind. It was an admirable ideal. 
Let us hold to it as long as we can. The world is still 
young. 

Having heard the optimist, we must let the pessimist 
also state his case. If he is a reasonable pessimist, he 
will admit that Obedience may be expected to become 
more and more a product of reason rather than of mere 
indolence or timidity, because every advance in popular 
enlightenment or in the participation of the masses in 
government ought, after the first excitement of uncha- 
stened hopes or destructive impulses has passed away, 
to engender a stronger feeling of the common interest 



490 OBEDIENCE 

in public order, and of the need for subordinating the 
demands of a class to the general good. He will also 
admit that the progress of social equality may tend to 
increase each man's sense of individual dignity. But 
if he is asked to admit further that governments will 
become purer and better because there will come along 
with that habit of rational obedience (a habit necessary 
to enable any government to be efficient) a stronger 
interest in self-government, a more active public spirit, a 
constant sense of the duty which each citizen owes to 
the community to secure an honest and wise administra- 
tion, he will observe that as we have seen that Obedience 
rests primarily upon certain instincts and habits woven 
into the texture of human nature, these instincts and 
habits will be permanent factors, not necessarily less 
potent in the future than they have been in the past. 
He will then ask whether the events of the last seventy 
years, during which power has, at least in form and 
semblance, passed from the few to the many, encourage 
the belief that the spirit of independence, the standard 
of public duty, and the sense of responsibility in each 
individual for the conduct of government are really 
advancing. 

Are the omens in this quarter of the heavens so 
favourable as we are apt to assume? 

There is less love of liberty — so our pessimist pursues 
— than there used to be, perhaps less value set upon the 
right of a man to express unpopular opinions. There is 
less sympathy in each country for the struggles which 
are maintained for freedom in other countries. National 
antagonisms are as strong as ever they were, and nations 
seem quite as willing as in the old days of tyranny to 
forgo domestic progress for the sake of strengthening 
their militant force against their rivals. There is less 
faith in, less regard for, that which used to be called the 
principle of nationality. Peoples which have achieved 
their own national freedom show no more disposition 
than did the tyrants of old time to respect the struggles 



OBEDIENCE 491 

of other peoples to maintain theirs. The sympathy 
which Germans and Frenchmen used to feel for the op- 
pressed races of the East has disappeared. France has 
ceased to care about the Cretans or the Poles. England, 
whose heart went out forty years ago to all who strove 
for freedom and independence, feels no compunction 
in blotting out two little republics whose citizens have 
fought with a valour and constancy never surpassed. 
The United States ignore the principles of their Decla- 
ration of Independence when they proceed to subjugate 
by force the Philippine Islanders. The modern ideal is 
no longer liberty, but military strength and commercial 
development. 

If freedom is less prized, it is perhaps because free 
governments have failed to bear the fruit that was ex- 
pected from them fifty years ago. The Republic in 
France seems, after thirty years, to have made the coun- 
try not much happier or more contentedly tranquil than 
it was under Louis Napoleon or Louis Philippe. It 
maintains, to the eyes of foreign observers, a precarious 
life from year to year, now and then threatened by plots 
military, political, or ecclesiastical. A free and united 
Italy has not realized the hopes of the great men to 
whom she owes her unity and her freedom. The United 
States have at least as much corruption in their legisla- 
tures, and worse government in their great cities, with 
fewer men of commanding ability in their public life, 
than before the Civil War, when it was believed 
that all evils would disappear with the extinction of 
slavery. In particular, representative government, in 
which the hopes of the apostles of progress were centred 
half a century ago, has fallen into discredit. In some 
countries the representative is more timid, more willing 
to be turned into a mere delegate, more at the mercy of 
a party organization, than he was formerly. In others 
the popular assembly is so much distrusted that men 
seek to override it by introducing a so-called plebiscite 
or referendum to review its decisions. 



492 OBEDIENCE 

No result was more confidently expected from the 
enlightenment of the bulk of the people than the triumph, 
a speedy and complete triumph, of sound economic doc- 
trines, such as those which prescribe the adoption of 
Free Trade in commercial legislation and reliance upon 
self-help rather than State-help in poor law matters and 
generally in social improvements. But the United King- 
dom is the only country in which Free Trade holds the 
field, and in the United Kingdom the true and whole- 
some principles of poor law administration, as set forth 
by Chalmers and by the famous Commissioners of 1834, 
have rather lost than gained ground. 

The doctrines of Laissez-Faire and Individualism have 
suffered an eclipse. The State interferes more and more 
with the power of the individual to do as he pleases. Its 
' motives are usually excellent, but the result is to subject 
j his life to a closer and more repressive supervision. This 
means more obedience, less exercise of personal dis- 
cretion, less of that virtue which guides the self-deter- 
mining will to choose the good and reject the evil. ' If 
every action,' says John Milton, ' which is good or evil 
in man at ripe years were to be under pittance, prescrip- 
tion and compulsion, what were virtue but a name — 
what praise could be then due to well-doing, what gra- 
mercy to be sober, just or continent? ' 

Nor is it only the State (whether through central or 
through local authorities) that threatens individual free- 
dom. Masses of working men surrender themselves to 
the control of the few chiefs of their trade organization, 
who are hardly the less despotic in fact because they are 
elected and because they are nominally subject to a con- 
trol which those who have elected them cannot, from 
the nature of the case, effectively exert 1 . Thus there is, 



1 This pessimist omits to notice that interference by the State or by such quasi- 
despotic combinations of workmen may have been deemed the only means of escap- 
ing- from submission to organizations of capitalists capable of exercising a tyranny 
through the forms of the law. He would however reply that this fact did not tell 
against his thesis that, one way or another, people are not becoming more fully 
masters of their own lives and fates. 



OBEDIENCE 493 

instead of more independence, always more and more 
obedience. 

To one who believes the principles of Free Trade and 
Self-Help to be irrefragably true this means that the 
bulk of the people are not, as was formerly expected, 
thinking for themselves, perhaps are not capable of 
thinking for themselves, while those persons who are 
capable fear to contend for doctrines which happen to be 
unpopular because opposed to ignorant or superficial 
views of what is the interest of a nation or of the most 
numerous class in the nation. 

In the enlightenment of the people, which was to in- 
crease their independence of spirit and their zeal for 
good government, the chief part was to be played by 
the public press. Its influence has increased beyond the 
most sanguine anticipations of the last generation of re- 
formers whether in Great Britain or in Continental Eu- 
rope. It employs an enormous amount of literary talent. 
Nothing escapes its notice. But in some countries it 
has become a powerful agent for blackmailing ; in others 
it is largely the tool of financial speculators ; in others, 
again, it degrades politics by vulgarizing them, or seeks 
to increase its circulation by stimulating the passion of 
the moment. Pecuniary considerations cannot but afifect 
it, because a newspaper is a commercial concern, whose 
primary aim is to make a profit. Almost everywhere it 
tends to embitter racial animosities and make more diffi- 
cult the preservation of international peace. When it 
tells each man that the views it expresses are those of 
everybody else, except a few contemptible opponents, it 
increases the tendency of each man to fall in with the 
views of the mass, and confirms that habit of passive 
acquiescence which the progress of enlightenment was 
once expected to dispel. 

The growth in population of the great industrial na- 
tions, such as Germany, England, and the United States, 
may tend to dwarf the sense in each man of his own 
significance to the whole body politic, and dispose him 



494 OBEDIENCE 

to make less strenuous efforts than he would have put 
forth had he thought his own exertions more likely to 
tell upon the community. The vaster the people the 
more trivial must the individual appear to himself, and 
the more readily will he fall in with what the majority 
think or determine. 

The rise of wages among the poorer classes and the 
bettering of material conditions in all classes were ex- 
pected to give the bulk of the people more leisure, and 
it was assumed that this would induce them to bestow 
more attention upon public affairs and so stimulate 
them in the discharge of civic duties. Wages have risen 
everywhere, notably in England and the United States, 
and material conditions have improved. But new in- 
terests have therewith been awakened, and pleasures 
formerly unattainable have been brought within the 
reach of every class except the very poorest. Whatever 
other benefits this change brings, it has not tended to 
make civic duty more prominent in the mind of the 
average man. With some, material enjoyments, with 
others physical exercise, or what is called sport (includ- 
ing the gambling that accompanies many kinds of sport), 
with others the more refined pleasures of art or litera- 
ture, have come in to occupy the greatest part of such 
time and thought as can be spared from daily work; and 
public affairs receive no more, perhaps even less, of 
their attention than was formerly given. 

May it not even be that material comfort and the sur- 
render of one's self to enjoyment, whether directed 
towards the coarser or towards the worthier pleasures, 
tend in softening the character, to relax its tension, or at 
least to indispose it to rough work? To a fine taste 
things in which taste cannot be indulged become dis- 
tasteful. Thus high civilization may end by increasing 
the sum of human indolence, at least so far as politics 
are concerned, and indolence is, after all, the prime 
source of Obedience. Some things no doubt men will 
continue to value and (if need be) to defend, because 



OBEDIENCE 495 

they will have come to deem them essential. Freedom 
of Thought and Speech is probably one of these things, 
though the multitude occasionally shows how intolerant 
it can be when excited. Civil Equality is another; the 
respect for private civil rights, with a tolerably fair ad- 
ministration of justice for enforcing those rights, is a 
third. These have rooted themselves in Germany and 
England, for instance, and (with some few local excep- 
tions) in the United States, as necessaries to existence. 
But can the same thing be said of political freedom, that 
is, of the right to control, by constitutional machinery, 
the government of the State ? Is it not possible that the 
disposition to acquiesce and submit without the applica- 
tion of compulsive force may be as strong under these 
new conditions as it ever was before? possible that an 
educated and intelligent people might, if material com- 
fort and scope for intellectual development were secured, 
grow weary of political contention, and submit to the 
despotism, perhaps of a regular monarch, perhaps of a 
succession of adventurers, which, tempered in some de- 
gree by public opinion, should secure peace, order and 
commercial prosperity? The thing has happened be- 
fore. For five centuries the people who had been the 
most politically active and who remained the most in- 
telligent and most civilized in the world made no effort 
to recover the political freedom they had lost, having 
indeed, within a generation or two, ceased even to think 
of it. 

So far our pessimist. He has obviously omitted, not 
only some facts which make against the gloom of his 
picture, but also other facts incidental to the phenomena 
on which he dwells, which qualify their import or indi- 
cate that they may be merely transient. The most seri- 
ous part of the case which he endeavours to make against 
the old theory that democratic government fosters the 
attachment to freedom, stimulates civic zeal, and intensi- 
fies the independent spirit of the citizen, is the suggestion 
that the vast size of modern nations, and the insignifi- 



496 OBEDIENCE 

cance of the individual man as compared to the multitude 
around him, tend to dwarf his personal sense of respon- 
sibility and to depress his hopes of withstanding what- 
ever sentiment or opinion may be for the time predomi- 
nant. The rule of the majority, if it induces the belief 
that the majority must be right, or at any rate that the 
majority is irresistible 1 , brings back the old dangers of 
submission. So the familiar tendency to follow and obey, 
rather than to think and act for one's self, may be even 
stronger in a democracy than it was under the monar- 
chies of earlier days. 

If, now that both sides have been heard, we are to 
attempt to answer the question propounded some pages 
back, our answer must be that despite the changes which 
have passed upon the modern world, the tendencies of 
human nature which make for obedience have not be- 
come, and are not likely to become, less powerful than 
they were. That they should disappear is not to be de- 
sired, for they are useful tendencies, without which so- 
ciety would not hold together. But they have not been 
reduced even so far as the reasonable friends of progress 
might wish. In the sphere of religion the compulsion 
once exercised, not merely by force, but also by public 
opinion, has doubtless in most countries declined. There 
is also a larger and freer play of thought and taste in all 
matters not appertaining to collective action, that is to 
say, in matters involving no collision of wills. But where 
this collision arises, as in the spheres, of politics and in- 
dustry, the disposition of the average man to defer and 
fall into line, the tendency of the stronger will to prevail 
because it is the stronger, are as great as ever they were 
before. Physical force plays a smaller part than it did 
in the ruder ages. But Indolence, Deference, and Sym- 
pathy, rather than Reason and the pride of personal inde- 
pendence, have filled the void which the less frequent 
appeal to physical force has left. 

1 Some remarks upon this feature of the United States may be found in the au- 
thor's American Commonwealth, vol. ii. chap, lxxxv, ' The Fatalism of the 
Multitude.' 



OBEDIENCE 497 

So far as the question touches England, it may be that 
the friends of progress and freedom of the last genera- 
tion, the generation of Mazzini and Garrison and Cobden 
and Gladstone, assume too hastily that the reforming 
ardour and other civic virtues which had been evoked 
by the long battle of Englishmen against monarchy and 
oligarchy and class legislation would remain unabated, 
after the battle had been won, in days which see popular 
self-government an ordinary part of daily life. When 
the grosser abuses in administration have been removed, 
when everybody's rights have been recognized, when 
new questions, far more intricate and difficult, but less 
exciting, have arisen, when it is not destruction — a thing 
everybody can clamour for — but constructive legisla- 
tion that is needed, public interest may flag and politics 
cease to stir emotion as they formerly did. Just as in 
Italy the struggle for national unity and freedom called 
to the front in the first half of the nineteenth century 
a brilliant and lofty group of men, who have left few suc- 
cessors, so it may be that the normal attitude of a people 
towards its public life, and the normal attraction which 
public life has for fine characters and high talents, will 
fall short of that which has marked the periods of con- 
flict over great principles. The standard will not there- 
fore, even should it now be sinking, rest at a point lower 
than that at which average humanity has stood through 
past ages, though it will be lower than that to which ex- 
ceptional needs, rousing strong emotions and inspiring 
golden hopes, had uplifted men during the days of 
conflict. 

There is, however, a further reply to be made to our 
pessimist before we part from him. Even supposing 
that the ideals which democratic theory sets up have not 
advanced towards realization, that the love of freedom 
and justice has declined, and that the tendency to indif- 
ference, to acquiescence in a dominant opinion, or to 
unthinking adherence to some organization, is stronger 
than was expected some forty years ago, these may be 
32 



498 OBEDIENCE 

only transitory phenomena. In a striking passage of his 
Constitutional History of England (vol. ii, chapter 17), 
Bishop Stubbs comments on the moral and political de- 
cline of the men of the fourteenth century from the level 
of the thirteenth, but observes that unseen causes were 
already at work which after no long interval restored 
the tone and spirit of England. It has often been so in 
history, though no generation can foretell how long a 
period of intellectual or moral depression will endure. 



NOTE TO THE ABOVE ESSAY 

On the Application of the Theory of Obedience 
to the Fundamental Definitions of Jurispru- 
dence. 

The school of jurisprudence which follows Bentham 
defines a Law as a Command of the State, represents 
every law as resting solely upon the physical force of 
the State, through the threat of punishment to those 
who transgress the law, and finds in the fear of punish- 
ment the sole motive of the obedience rendered by the 
citizens. 

There are three objections to this doctrine and defini- 
tion. The first is that if it is meant, as the generality 
of language used by its propounders implies, to apply 
to all political communities, it is untrue as matter of 
history, because it suggests a false view of the origin of 
law, and is inapplicable to the laws of many commu- 
nities. There have been peoples among whom there was 
a law but no State capable of enforcing obedience. In 
all communities there have been laws which were in fact 
obeyed, but which were not deemed by the people to 
have emanated from the State Y The great bulk of the 
rules which determine the relations of individuals or 
groups to one another have in most countries, until 
comparatively recent times, rested upon Custom — that 
is to say, upon long-settled practice which everybody 
understands and in which everybody acquiesces. In 
such countries customs were or are laws, and do not 
need to be formally enounced in order to secure their 
observance by the people.; Custom is simply the result 



500 OBEDIENCE 

I of the disposition to do again what has been done be- 
fore. What Habit is to the individual, Custom is to the 
community/) 

The second objection is that, even in mature States 
where there exist public authorities regularly exercising 
legislative functions, most laws do not belong in their 
form or their meaning to the category of commands. 
In order to make them seem commands a forced and 
unnatural sense must be put upon them, by representing 
the State as directly ordering everything to which it is 
prepared to give effect. Statute law takes the form of 
a command more often than does any other kind of law. 
Yet even in English statute law administrative statutes, 
which now constitute a large part of that law, are usually 
couched in the form, not of an order to a public body 
or an official to do such and such a thing, but of an 
authorization which makes action legal which might 
otherwise have been illegal. This distinction, though 
somewhat technical, nevertheless indicates the unsuit- 
ability of the definition. As for that part of the law of 
a country which determines the private rights of the 
citizens towards one another, as for instance the condi- 
tions attaching to commercial and other contracts, their 
interpretation, the liability they create, or, again, the 
rights of succession to property, and the modes of deal- 
ing with heirship or bequests — this largest and most 
important part of the law does not consist of commands. 
The rules of which it consists are declarations of the 
doctrines which the Courts have applied and will apply ; 
or they are, if you like, assurances given by the State 
that it will, with physical force at its disposal, take a 
certain course in certain events, and thus they become 
instructions helpful to the citizens, showing them 'how 
they may get the law, and physical force, on their side 
in civil disputes. But they are not, in any natural sense 
of the word, Commands. This is obvious enough in 
English law, where most of such rules are to be gathered 
from the reports of decided cases : but the same thing 



OBEDIENCE 501 

is substantially true of those countries which have em- 
bodied in statutory form their rules upon these matters. 
The point is not merely one of form or phrase, though 
it may at first sight seem to be so. It goes deeper; it 
carries one back to the origin of these laws, and bears 
upon their inherent nature. In fact the only branch of 
law which is properly covered by the definition I am 
examining is Penal or Criminal (with certain parts of 
administrative) law, for this branch does consist of 
express orders or prohibitions accompanied by threats 
of punishment. It may be conjectured that the Ben- 
thamites took their notion of law in general from this i 
particular department of it, or perhaps from the Ten' 
Commandments in the Book of Exodus, which, though 
no doubt good examples of the categorical imperative, 
are anything but typical of law in general. 

If the Benthamites had been content to distinguish 
rules which the State enforces from courses of conduct 
which opinion supports, the distinction, though an older 
and more obvious one than they supposed, would have 
its worth. The definition of a law as that which the 
State is prepared to enforce fits a modern State, though 
not universally applicable to early communities. But 
the Benthamite definition goes further, and may be mis- 
leading even as regards modern laws generally. 

The third objection to this definition is that it is not 
primarily or chiefly Fear which is the source of Obe- 
dience. It is not Physical Force that has created the 
State whence (according to this doctrine) laws issue and 
by which they are applied, /it is not through Force that 
kings reign and princes decree justice. According to 
the Hebrew Scriptures it is by God that they reign. 
According to Homer it is Zeus who has given to the 
king the sceptre and the dooms, that therewith he may 
rule. Both expressions convey the same truth, that it 
is by the natural or providential order of things, and in 
virtue of the constitution of man as a social being, that 
men are grouped into communities under leaders who 



502 OBEDIENCE 

judge among- themJ The tendency to aggregation, to 
imitation, to compliance and submission, is the basis on 
which the State is built. It is of course not only true 
but obvious that the State must have physical strength 
at its disposal in order to make the law obeyed. The 
capacity for applying compulsion holds the State to- 
gether. But why is it that the State is able to apply 
force? Because, in the ordered and normal State, the 
same influences which have drawn men together keep 
them together, and make them willingly yield to the 
State the physical strength, and the money which pur- 
chases physical strength, needful for its purposes. 
Where a ruler rules by pure force (apart from the con- 
sent of the community), he is what the Greeks called 
a Tyrant, or the Italians in the fourteenth century a 
Signore, a Usurper reigning in defiance of law by means 
of armed men, an Adventurer who has risen by a revolu- 
tion, is supported by the soldiery, and will fall when they 
turn against him. Such Tyrants are represented in our 
own day by the Presidents in some of the Spanish Re- 
publics of Central and South America. Pure Force is 
really the most unstable foundation on which either the 
State or Law can rest. 

Thus the same conclusion to which history leads is 
also enjoined on us by a consideration of the psycho- 
logical or sociological grounds which induce obedience, 
and the Benthamic definition is perceived to be unsound. 
These curt and often sweeping definitions usually are 
unsound. They are not simple, although they are sum- 
mary. They are arbitrary and artificial, concealing under 
few words many fallacies. Human nature and human 
society are too complex to be thus dealt with. 



X 

THE NATURE OF SOVEREIGNTY 

I. Preliminary. 

As the borderland between two kingdoms used in un- 
settled states of society to be the region where disorder 
and confusion most prevailed, and in which turbulent 
men found a refuge from justice, so fallacies and con- 
fusions of thought and language have most frequently 
survived and longest escaped detection in those terri- 
tories where the limits of conterminous sciences or 
branches of learning have not been exactly drawn. The 
frontier districts, if one may call them so, of Ethics, of 
Law, and of Political Science have been thus infested by 
a number of vague or ambiguous terms which have pro- 
voked many barren discussions and caused much need- 
less trouble to students. The words which serve as 
technical expressions in adjacent departments of know- 
ledge are sometimes employed in slightly different senses 
in those different departments ; and neither in Ethics 
nor in Politics has a well-defined terminology become 
accepted. It is only of late years, when philosophy in 
becoming less creative has become more critical, that 
there has been established on the confines of these three 
sciences a comparatively vigilant police, which is compe- 
tent, at least in the realm of law, to arrest suspicious 
phrases and propositions, and subject them to a rigorous 
examination. 

No offender of this kind has sriven more trouble than 



504 TEE NATURE OF SOVEREIGNTY 

the so-called ' Doctrine of Sovereignty.' The contro- 
versies which it has provoked have been so numerous 
and so tedious that a reader — even the most patient 
reader — may feel alarmed at being invited to enter once 
again that dusty desert of abstractions through which 
successive generations of political philosophers have 
thought it necessary to lead their disciples. Let me 
therefore hasten to say that my aim is to avoid that 
desert altogether, and approach the question from the 
concrete side. Instead of attempting to set forth and 
analyse the doctrines of the great publicists of the six- 
teenth and seventeenth centuries — Bodin, Althaus, Gro- 
tius, Hobbes, and the rest — or the dogmas delivered by 
Bentham and Austin, who represent the school that has 
had most influence during the last seventy years in Eng- 
land, I will assume the views of these and similar writers 
to be sufficiently known, and will reserve criticisms upon 
them till we have seen whether there may not be found 
a conception and definition of the thing more plain, 
simple, and conformable to the facts, than could well 
have been reached by those who, living in the midst of 
acute political controversies, were really occupied in 
solving problems which belonged to their own time, and 
which now, under changed conditions, seem capable of 
receiving an easier solution. If we succeed in finding 
such a conception, we may return to inquire why the 
modern successors of Hobbes, who had not the same 
need for a theory as he had, worried themselves over 
what was really a question rather of words than of 
substance. 

It is well to begin by distinguishing the senses in 
which the word Sovereignty is used. In the ordinary 
popular sense it means Supremacy, the right to demand 
obedience. Although the idea of actual power is not 
absent, the prominent idea is that of some sort of title 
to exercise control. An ordinary layman would call 
that person (or body of persons) Sovereign in a State 
who is obeyed because he is acknowledged to stand at 



THE NATURE OF SOVEREIGNTY 505 

the top, whose will must be expected to prevail, who 
can get his own way, and make others go his, because 
such is the practice of the country. Etymologically the 
word of course means merely superiority 1 , and familiar 
usage applies it in monarchies to the monarch, because 
he stands first in the State, be his real power great or 
small. 

II. Legal Sovereignty (De lure). 

For the purposes of the lawyer a more definite con- 
ception is required. The sovereign authority is to him 
the person (or body) to whose directions the law attri- 
butes legal force, the person in whom resides as of right 
the ultimate power either of laying down general rules 
or of issuing isolated rules or commands, whose au- 
thority is that of the law itself. It is in this sense, and in 
this sense only, that the jurist is concerned with the 
question who is sovereign in a given community. In 
every normal modern State there exist many rules pur- 
porting to bind the citizen, and many public officers who 
are entitled, each in his proper sphere, to do certain acts 
or issue certain -directions. Who- has the right to make 
the rules? Who has the right to appoint and assign 
functions to the officers ? The person or body to whom 
in the last resort the law attributes this right is the 
legally supreme power, or Sovereign, in the State. 
There may be intermediate authorities exercising dele- 
gated powers. Legal sovereignty evidently cannot re- 
side in them ; the search for it must be continued till the 
highest and ultimate source of law has been reached. 

A householder in a municipality is asked to pay a 
paving rate. He inquires why he should pay it, and is 
referred to the resolution of the Town Council im- 
posing it. He then asks what authority the Council has 

1 The heads of monasteries seem to have been sometimes familiarly described 
as Sovereigns in the Middle Ages. The name Sovereign was down till very recent 
times used to describe the head of a municipality in several Irish boroughs. Proba- 
bly other similar instances might be collected. 



506 THE NATURE OF SOVEREIGNTY 

to levy the rate, and is referred to a section of the Act 
of Parliament whence the Council derives its powers. 
If he pushes curiosity further, and inquires what right 
Parliament has to confer these powers, the rate col- 
lector can only answer that everybody knows that in 
England Parliament makes the law, and that by the law 
no other authority can override or in any wise interfere 
with any expression of the will of Parliament. Parlia- 
ment is supreme above all other authorities, or in other 
words, Parliament is Sovereign. 

The process of discovering the Sovereign is in all 
normal modern States essentially the same. In an auto- 
cracy like that of Russia it is generally very short and 
simple, since all laws (except customs having legal force) 
and executive orders emanate directly or indirectly from 
the Czar, and by the law the Czar is the sole legislative 
authority. Both these cases are simple and easy, be- 
cause we speedily reach one Person, as in Russia, or 
one body of persons, as in Britain, to whom the law at- 
tributes Sovereignty. But there are cases which present 
more difficulty, though the principles to be applied are 
the same. 

In a country governed by a Rigid Constitution which 
limits the power of the legislature to certain subjects, 
or forbids it to transgress certain fundamental doctrines, 
the Sovereignty of the legislature is to that extent re- 
stricted. Within the sphere left open to it, it is supreme, 
while matters lying outside its sphere can be dealt with 
only by the authority (whether a Person or a Body) 
which made and can amend the Constitution. So far as 
regards those matters, therefore, ultimate Sovereignty 
remains with the authority aforesaid, and we may there- 
fore say that in such a country legal Sovereignty is di- 
vided between two authorities, one (the Legislature) in 
constant, the other only in occasional action. 

Another class of cases arises in a Federal State, where 
the powers of government are divided between the Cen- 
tral and the Local Legislatures, each having a sphere of 



THE NATURE OF SOVEREIGNTY 507 

its own determined by the constitution of the federa- 
tion. In such a State the power of making laws belongs 
for some purposes to the Central, for some to the Local 
Legislatures. Thus in the United States, while Congress 
is everywhere the supreme legislative power for some 
subjects, the tariff, for instance, or copyright, or inter- 
state commerce, the legislature of each State is within 
that State supreme for other subjects, the law of mar- 
riage, for instance, or of sale, or of police administra- 
tion. Each legislature therefore (Congress and the 
State Legislature) has only a part of the sum total of 
supreme legislative power ; and each is moreover further 
limited by the fact that the Constitution of the United 
States restricts the general powers of Congress by for- 
bidding it to do certain things, while the powers of each 
State Legislature are restricted not only by the Consti- 
tution of the particular State but by the Constitution of 
the United States also. These complications, however, 
do not affect the general principle. In every country 
the legal Sovereign is to be found in the authority, be 
it a Person or a Body, whose expressed will binds others, 
and whose will is not liable to be overruled by the ex- 
pressed will of any one placed above him or it. The 
law may, in giving this supremacy, limit it to certain 
departments, and may divide the whole field of legisla- 
tive or executive command between two or more au- 
thorities. The Sovereignty of each of these authori- 
ties will then be, to the lawyer's mind, a partial Sove- 
reignty. But it will none the less be a true Sovereignty, 
sufficient for the purposes of the lawyer. He may some- 
times find it troublesome to determine in any particular 
instance the range of action allotted to each of the seve- 
ral Sovereign authorities. But so also is it sometimes 
troublesome to decide how far a confessedly inferior 
authority has kept within the limits of the power con- 
ferred upon it by the supreme authority. The question 
is in both sets of cases a question of interpreting the law, 
which defines in the one case the sphere of power, in the 



508 THE NATURE OF SOVEREIGNTY 

other case the extent of delegation actually made; and 
this difficulty nowise affects the truth that legal Sove- 
reignty is capable of being divided between co-ordinate 
authorities, or of being from time to time interrupted, 
or rather overridden, by the action of a power not regu- 
larly at work. It will be understood that I am now deal- 
ing with Legal Sovereignty only, and not at this stage 
touching the question of whether, from the point of 
view of philosophic theory, Sovereignty is capable of 
division. 

Finally, let it be noted that where Sovereignty is di- 
vided between two or more authorities, one of those 
(or possibly even more than one) may have executive 
functions only. Where there is but one Sovereign Per- 
son or Body, that Person or Body will evidently have 
both legislative and executive powers, i.e. will be entitled 
to issue special commands as well as to prescribe general 
rules. But a division of Sovereignty may assign legisla- 
tive functions to one authority, executive to another. In 
the United States, for instance, the President is, by the 
Constitution, Sovereign for certain executive purposes 
(e.g. the command of the army), and the legislature can- 
not deprive him of that Sovereignty. If Congress were 
to pass an Act taking the command of the army from 
him, that Act would be void. So in England four cen- 
turies ago, although Parliament was already beginning 
to be recognized as sovereign for legislative purposes, 
the king had, in some departments, an executive sove- 
reignty which the two Houses of Parliament did not dis- 
pute ; and he laid claim in the time of the first two Stuarts 
to a sort of concurrent legislative sovereignty, which it 
required first a civil war and then a revolution finally to 
negative and extinguish. 

So also it has been argued that Legal Sovereignty 
may be temporary, yet complete while it lasts, as was 
that of a Roman dictator. The phenomenon is so rare 
that we need not spend time on discussing it ; but there 
seems to be in principle nothing to prevent absolute 



THE NATURE OF SOVEREIGNTY 509 

legal control from being duly vested in a person or body 
of persons for a term which he, or they, cannot extend. 

The kind of Sovereignty we have been considering 
is created by and concerned with law, and law only. It 
has nothing to do with the actual forces that exist in a 
State, nor with the question to whom obedience is in fact 
rendered by the citizens in the last resort. It represents 
merely the theory of the law, which may or may not 
coincide with the actual facts of the case, just as the va- 
lidity of the demonstration of the fifth proposition in the 
first book of Euclid has nothing to do with the accuracy 
with which the lines of any actual figure of that propo- 
sition are drawn. The triangle in the figure which ap- 
pears in a particular copy of the book may not have 
equal sides, nor the angles at the base be equal; this 
does not affect the soundness of the proof, which as- 
sumes the correctness of the figure. So law assumes, 
and must assume all through, that the machinery re- 
quired for its enforcement is working in vacuo, steadily, 
equably, and in a manner capable of overcoming resist- 
ance. The actual receiving of obedience is therefore 
not (as some have argued) the characteristic mark of a 
Sovereign authority, but is a postulate of the law with re- 
gard to each and every of the authorities it recognizes. 
Penal laws no doubt contemplate transgression, but they 
assume the power of overcoming it. With the fact that 
obedience is in any given community rendered imper- 
fectly or not rendered at all, Law as such has nothing 
to do. In other words, the question of where Legal 
Supremacy resides is a pure question of Right as de- 
fined by law. The Sovereign who exists as of right (dc 
iurc) has not necessarily anything to do with the Sove- 
reign who prevails in fact (de facto), though, as we shall 
see presently, the two conceptions, however distinct 
scientifically, exercise a significant influence each on 
the other. 

Further: the question, Who is Legal Sovereign? 
stands quite apart from the questions, Why is he Sove- 



510 THE NATURE OF SOVEREIGNTY 

reign? and, Who made him Sovereign? The historical 
facts which have vested power in any given Sovereign, 
as well as the moral grounds on which he is entitled to 
obedience, lie outside the questions with which Law is 
concerned, and belong to history, or to political philo- 
sophy, or to ethics ; and nothing but confusion is caused 
by intruding them into the purely legal questions of the 
determination of the Sovereign and the definition of his 
powers. Even the manner in which, or the determina- 
tion of the persons by whom, the Legal Sovereign is 
chosen is a matter distinct from the nature and scope 
of his authority. He is not the less a Sovereign in the 
contemplation of law because he reigns not by his own 
right but by the choice of others, as an elective monarch 
(like the Romano-Germanic emperor) did, or as an elec- 
tive assembly does to-day. The appointing body, even 
if it can in a stated way and at a stated time recall its 
appointment, is not sovereign over him while his powers 
last. The fact that the House of Commons, a part of the 
Legal Sovereign of England, is chosen by the people, and 
that many members of the House of Lords, another part 
of the Legal Sovereign, have been appointed by the 
Crown, does not affect the Sovereignty of Parliament, 
because neither the people nor the Crown have the right 
of issuing directions, legally binding, to the persons 
they have selected. 

We have already seen that Legal Sovereignty may be 
limited or divided. But it is further to be noted that 
the totality of possible legal sovereignty may, in a given 
State, not be vested either in one sovereign or in all the 
sovereign bodies and persons taken together. In other 
words, there may be some things which by the constitu- 
tion of the State no authority is competent to do, because 
those things have been placed altogether out of the reach 
of legislation. We have already remarked that all the 
American constitutions, for instance, both State and 
Federal, forbid the legislature to interfere with the so- 
called ' primordial rights ' of the citizen. There is thus 



THE NATURE OF SOVEREIGNTY 511 

in the United States no authority invested with legal 
power, in time of peace, to prohibit public meetings not 
threatening public order, or to suppress a newspaper. 
It is true that the people of each State (or of the Union) 
retain the power to alter their Constitution, but until 
or unless they do alter it the acting legal Sovereign re- 
mains debarred from an important part of the power of 
Sovereignty. And we may imagine a case in which a 
Constitution has been enacted with no provision for any 
legal method of amending it 1 . In fact, a somewhat 
similar condition of things exists in all Musulman coun- 
tries. In Turkey, the Sultan, though Sovereign, is sub- 
ject to the Sheriat or Sacred Law, which he cannot alter ; 
and which no power exists capable of altering. A good 
deal may be done in the way of interpretation; and the 
desired Fetwa or solemnly rendered opinion of the Chief 
Mufti or Sheik-ul-Islam can generally be obtained by 
adequate extra-legal pressure on the Sultan's part. But 
no Sultan would venture to extort, and probably no 
Mufti to. render, a fetwa in the teeth of some sentence 
of the Koran itself, which, with the Traditions, is the 
ultimate source of the Sacred Law, binding all Muslims 
always and everywhere. 

III. Practical Sovereignty {De Facto). 

We may now turn back to the more popular mean- 
ing in which the term Sovereignty is used by others than 
lawyers 2 . Even to the ordinary layman it generally 
seems to convey some sort of notion of legal right, yet 
it may be, and sometimes has been, used to denote 
simply the strongest force in the State, whether that 
force has or has not any recognized legal supremacy. 

1 This seems to be the case in Spain. Some of the republics of antiquity pro- 
fessed to have unchangeable laws, but few, if any, of these fully answered to the 
conception of a Rigid Constitution as we understand it. See Essay III, p. 124. 

2 I pass by the sense in which it is applied to the person of a monarch, whether 
limited or absolute, as the king is in any country called the Sovereign, because that 
sense is not liable to be confused with the purely legal sense. A Nominal Sovereign 
need not be, and often is not, either a Legal or a Practical Sovereign. 



512 THE NATURE OF SOVEREIGNTY 

This strongest force may be a king, or an assembly, or an 
oligarchic group controlling a king or an assembly, or 
an army, or the chief or chiefs of an army. It may be 
and ought to be the legal sovereign, or it may be quite 
distinct from the legal sovereign and possess no admitted 
status in the Constitution. The expression is perhaps 
most frequent in the phrase ' Sovereign Power,' which 
carries with it the idea of its being, whether legal or not, 
at any rate irresistible. We may define this dominant 
force, whom we may call the Practical Sovereign, as the 
person (or body of persons) who can make his (or their) 
will prevail whether with the law or against the law. He 
(or they) is the de facto ruler, the person to whom obe- 
dience is actually paid. 

It is better not to say ' the person who compels obe- 
dience ' or ' the person who commands physical force,' 
because it may not be under positive compulsion, but in 
virtue of other sources of power than the command of 
physical force, that obedience is in fact rendered. Re- 
ligious influence or moral influence or habit may dis- 
pose men not only themselves to obey, but to place their 
service in making others obey at the disposal of the per- 
son to whom such influence belongs. A priest or a 
prophet may be stronger than the king. 

The best instances of the Practical or Actual Sove- 
reign are to be found in communities where legal sove- 
reignty is in dispute or has disappeared. Cromwell when 
he dissolved the Long Parliament, Napoleon when he 
overthrew the Directory, the Convention when it offered 
the Crown of England to William and Mary, the Con- 
stituent Assembly in France in 1871 when it made peace 
with Germany before any regular republican constitu- 
tion had been adopted for France, were actually Sove- 
reign. Even where a Legal Sovereign exists, there are 
sometimes particular persons or groups who stand out 
as able to control the State. However, although Thu- 
cydides speaks of Pericles as exercising practical control 
in Athens, it would be going too far to apply to him or 



TEE NATURE OF SOVEREIGNTY 513 

to any person in his position such a description as that 
of dc facto sovereign. In most of the South American 
republics the Practical Sovereign is the army, or a 
general (or combination of generals) whom the army, 
whether or no this general be in fact President, will fol- 
low. In Egypt, though the Legal Sovereign is the Khe- 
dive — for little regard need be had to the theoretical 
suzerainty of the Turk, which is put in force only when 
the European Powers choose to use it for their own pur- 
poses — the Practical Sovereign has for some years past 
been the British Government. In Rome, after the revo- 
lution which overthrew the republic, the Practical Sove- 
reign was Octavianus Augustus, though the Legal Sove- 
reignty remained vested in the People, subject to the 
claim of the Senate to exercise certain powers. In Syra- 
cuse under Dionysius the Elder, in Florence under Lo- 
renzo dei Medici, each of those tyrants was Practical 
Sovereign, though neither enjoyed legal supremacy. In 
England people are accustomed to call the House of 
Commons the ' sovereign power,' though the law makes 
the consent of the other House and that of the Crown 
just as necessary to the validity of a statute as is that 
of the representatives of the people. In Denmark within 
our own time the Practical Sovereign was for some 
years the King, because the Constitution, which gives 
legal sovereignty to the Legislature and King together, 
was for a while virtually in abeyance, there having been a 
struggle and deadlock during which the Crown retained 
its ministers and raised taxes without the concurrence of 
the popular house. One might refer, by way of illustra- 
tion, to cases in which some private organization exerts 
a power which interferes with that of the de hire govern- 
ment. Such was the Vehmgericht in Westphalia in the 
fifteenth century, such, on a much smaller scale and in 
a less effective way, were the Molly Maguires of Penn- 
sylvania and the Mafia of Sicily. But these cases lie 
quite outside our definition : as do those of monarchies 
in which a strong minister or a father confessor or even 
33 



514 THE NATURE OF SOVEREIGNTY 

a court favourite has held the position of Practical Sove- 
reign, that is to say, has been the person who would and 
could have his way, wielding the powers of the State at 
his sole pleasure through his influence upon the will of 
the titular sovereign 1 . 

The Musulman world furnishes two instances which 
deserve a passing word. The Mogul Emperors after 
Aurungzebe continued to be sovereigns de iure for a long 
time in Northern and Central India, though it was hard 
to say, till the East India Company extended its con- 
quests far inland, who was sovereign de facto. Since the 
time of Sultan Selim the First (a.d. 1516) the Turkish 
Sultans have been (in large measure) Khalifs de facto. 
They claim to be Khalifs de iure, but the better opinion 
among Muslim sages is that the Khalif must be, as were 
the Ommiyads and the Abbasides, of the tribe of the 
Khoreish, to which Muhamad belonged, and in matters 
of such high sanctity long possession de facto makes no 
difference. Possibly therefore the Shereef of Mecca may 
be better entitled to call himself the Khalif de iure, en- 
titled to the obedience of all the Faithful. 

Where the Legal is not also the Practical Sovereign, 
it is obviously a far more difficult task to discover the 
latter than the former. As respects legal power there 
are the fixed rules of law, which in communities that 
have reached a certain stage of development indicate 
clearly the person (or body) to whom the ultimate right 
of legislation, or of issuing executive orders, belongs. 
But the political philosopher or historian who wishes 
to ascertain the actually strongest force in a State lacks 
the guidance of such rules as the lawyer possesses. He 
has to do with facts which are uncertain, with forces 
which are imponderable. In no two countries, more- 
over, are the phenomena of Practical Sovereignty quite 
the same. Nevertheless it is true that there is in every 
State a Strongest Force, a power to which other powers 

1 During- part of Lewis the Fifteenth's reign Madame Du Barry might almost 
have been, and probably was, described as sovereign de facto of France. 



TEE NATURE OF SOVEREIGNTY 515 

bow, and of which it may be, more or less positively, 
predicted that in case of conflict it will overcome all re- 
sistance. Here, however, we come upon one of the 
many difficulties that beset an inquiry into practical su- 
premacy. Are we to take a condition of peace, and ask 
whose will actually prevails while peace lasts, or are we 
to suppose a condition of war, and ask who would pre- 
vail if the strife between contending authorities were 
to be fought out by physical force ? In the before-men- 
tioned case of Denmark, for instance, though the Crown 
practically carried on the government, it was by no 
means clear that, if an insurrection broke out, the Crown 
would prove to be stronger than the popular chamber 
or those who supported it. In such inquiries the pre- 
cision with which Legal Sovereignty can be determined 
is unattainable, for the political student finds that the 
terms suited to the phenomena of one country are un- 
suited to those of another, and that his general propo- 
sitions regarding the actually Sovereign Powers must be 
subject to so many qualifications that they virtually 
cease to be general. 

We have, however, found in every political commu- 
nity two kinds of Sovereign, belonging to two different 
spheres of thought, the Sovereign dc iurc and the Sove- 
reign dc facto. Let us see what are the relations of the 
two conceptions, or the two concrete persons, each to 
the other. 

IV. The Relations of Legal to Practical 
Sovereignty. 

The Sovereign dc hire may also be the sovereign de 
facto. He ought to be so ; that is to say, the plan of a 
well-regulated State requires that Legal Right and 
Actual Power should be united in the same person or 
body. Right ought to have on its side, available for its 
enforcement, physical force and the habit of obedience. 
Where Sovereignty de facto is disjoined from Sove- 



516 THE NATURE OF SOVEREIGNTY 

reignty de iure, there will not necessarily be a collision, 
because the former power may act through the latter. 
But there is always a danger that the laws will be over- 
ridden by the Practical Sovereign and disobeyed by the 
citizens. 

Sovereignty de iure and sovereignty de facto have a 
double tendency to coalesce ; and it is this tendency 
which has made them so often confounded. 

Sovereignty de facto, when it has lasted for a certain 
time and shown itself stable, ripens into Sovereignty de 
hire. Sometimes it violently and illegally changes the 
pre-existing constitution, and creates a new legal system 
which, being supported by force, ultimately supersedes 
the old system. Sometimes the old constitution be- 
comes quietly obsolete, and the customs formed under 
the new de facto ruler become ultimately valid laws, and 
make him a dc iure ruler. In any case, just as Posses- 
sion in all or nearly all modern legal systems turns itself 
sooner or later through Prescription into Ownership 
— and conversely possession as a fact is aided by title 
or reputed title — so de facto power, if it can maintain 
itself long enough, will end by being de iure. Mankind, 
partly from the instinct of submission, partly because 
their moral sense is disquieted by the notion of power 
resting simply on force, are prone to find some reason 
for treating a de facto ruler as legitimate. They take any 
pretext for giving him a dc iure title if they can, for it 
makes their subjection more agreeable and may impose 
some restraint upon him. 

Sovereignty de iure in its turn tends to attract to itself 
sovereignty de facto, or, in other words, the possession 
of legal right tends to make the legal sovereign actually 
powerful. Hence a ruler de facto is always anxious to 
get some sort of de iure title, and Louis Napoleon, who 
had seized power by violence in 185 1, thought himself, 
and doubtless was, more secure after he had got two 
(so-called) plebiscites in his favour in 1852, recognizing 
him first as President for ten years and then Emperor. 



THE NATURE OF SOVEREIGNTY 517 

This is not merely because the Legal Sovereign has pre- 
sumably a moral claim to obedience — I say presumably, 
because he ma}' have forfeited this claim by tyranny — 
but also because most men are governed and all are in- 
fluenced by Habit, and therefore tend to go on obeying 
the person they have theretofore obeyed. It is more- 
over easier, in case of conflict, to know who is de iure 
sovereign than to foretell who will prove to be sovereign 
de facto; and whereas the de lure sovereign is certain, if 
victorious, to punish as rebels those who have opposed 
him, the de facto sovereign, having been himself a rebel, 
may possibly be more indulgent. Under King Henry 
the Seventh in England express provision was made by 
statute for the protection of persons obeying a de facto 
king 1 . Accordingly, when strife arises between two per- 
sons or bodies of nearly equal physical resources, each 
claiming authority, the person who has the better legal 
claim will usually have the better prospect of success, 
and the ordinary citizen will be safer in siding with him. 
This is one of the reasons why conspiracies and insurrec- 
tions, even against the worst de lure sovereigns, so often 
fail. 

Similarly it happens that where sovereignty de iure 
is in dispute and uncertain, strife is likely to trouble the 
practical sphere in the hands of the claimant who for 
the moment holds the government de facto; and this not 
merely because some of the people are zealous to support 
rights which they think infringed upon, but also because 
the sense of stability which supports a government has 
been impaired, and the usual check on a resort to physi- 
cal force thereby removed. 

When a sovereign has been long and quietly estab- 
lished de iure, the distinction between law and fact is 
forgotten, and people assume that whoever has the legal 
right will also as a matter of course have the physical 
force to support it. This tends to make the distinction 
forgotten. Conversely, when de facto sovereignty is 

1 ii Henry VII, cap. i. 



518 THE NATURE OF SOVEREIGNTY 

frequently in dispute, as happened in the Roman Empire 
during part of the third century a.d., and happens now 
in some of the so-called republics of Central and South 
America, the de iure sovereign virtually disappears, and 
nothing but the actual strength of each de facto sove- 
reign, or pretender to sovereignty, is regarded. Some 
of these republics are so much accustomed to the sus- 
pension of de hire government by de facto disturbance, 
that they provide that when a rebellion is over the pre- 
viously enacted constitution shall be deemed not to have 
lost its force 1 . It might be expected that when such a 
state of things has continued and become familiar, the 
conception of a legal sovereign would itself fade away 
and be extinguished. But political necessities and the 
example of other countries forbid this in the more civi- 
lized communities. It is so convenient to all parties to 
maintain the fabric of ordinary private law with the judi- 
cial and executive machinery required to support that 
fabric, that even when the person (or set of persons) who 
exercises Practical Sovereignty is frequently changed 
by revolutions, the substitution of one head for another 
is not deemed to affect the general machinery. Admini- 
stration is held to go on de iure, and the new occupant of 
the supreme power steps at once into the legal position 
of his predecessor. In the Roman Empire of the first 
four centuries of our era, the office of Emperor remained 
with its recognized functions and powers, though the 
holder of the office was frequently changed by violent 
means, and seldom possessed what lawyers would call 
a good title. The individual man was a pure de facto 
sovereign, often with no legal right to the obedience of 
the subject, but Caesar Augustus remained unchanged, 
and probably five-sixths of the population of the Empire 
did not know the personal name or the previous history 
of him whom they revered as Caesar Augustus. So the 

1 Thus the Constitution of Guatemala directs : ' Esta Constitucion no perdera 
su fuerza y vigor auncuando por alguna rebelion se interrumpa su observancia.' I 
take this instance from the book of M. Ch. Borgeaud, Ittablisseinent et Revision 
des Constitutioits, p. 236. 



THE NATURE OF SOVEREIGNTY 519 

changes in the constitution of France between January, 
1848, and February, 1 871, in which there were three total 
and absolute ruptures of legal continuity by revolution, 
with two interregna under provisional governments, had 
little effect on the laws or the courts or the civil admini- 
stration of France. The same thing happened during 
the dynastic wars of the fifteenth century in England. 
Thus even in disorderly tinies the idea of rule de hire 
is not lost among peoples that have once imbibed it. 
All through the English Civil War and Protectorate of 
the seventeenth century strenuous efforts were made by 
the Long Parliament and by Oliver Cromwell to make 
their government appear to be dc hire, though the Resto- 
ration Parliament treated it as having been (on the 
whole) de facto. In most Central or South American 
republics, on the other hand, as among the Italian re- 
publics of the fourteenth century, the interferences of 
the de facto sovereign with the course of law and ad- 
ministration are so numerous that the very notion of 
dc hire government loses its practical efficacy, and people 
simply submit to force, praising the ruler who least 
abuses his despotic power. 

The action and reaction of power dc hire and de facto 
upon one another might be illustrated by a diagram — a 
sort of political seismographic record — showing how the 
disturbance of either disturbs the other, and how the 
steadiness of the dc hire needle or the frequent quiverings 
of the dc facto needle indicate the stability or instability 
of the institutions of a country. One may express the 
relations of the two somewhat as follows: — 

When Sovereignty dc hire attains its maximum of 
quiescence, Sovereignty dc facto is usually also 
steady, and is, so to speak, hidden behind it. 
When Sovereignty dc hire is uncertain, Sovereignty 

dc facto tends to be disturbed. 
When Sovereignty de facto is stable, Sovereignty 
dc hire, though it may have been lost for a time, 
reappears, and ultimately becomes stable. 



520 THE NATURE OF SOVEREIGNTY 

When Sovereignty de facto is disturbed, Sovereignty 
de lure is threatened. 
Or, more shortly, the slighter are the oscillations of 
each needle, the more do they tend to come together 
in that coincidental quiescence which is an index to the 
perfect order, though not otherwise to the excellence, 
of a government. 

Let us try to sum up the propositions to which the 
foregoing inquiry has led us : — 

The term Sovereignty is used in two senses, Legal 
Supremacy and Practical Mastery. 

Legal Sovereignty exists in the sphere of Law: it 
belongs to him who can demand obedience as of 
Right. 
Practical Sovereignty exists in the sphere of Fact : 
it is the power which receives and can by the 
strong arm enforce obedience. 
The Legal Sovereign in any State is ascertained by 
determining the Person (or Body) to whom the 
law assigns in the last resort the right of issuing 
general rules or special orders, or of doing acts 
without incurring liability therefor. 
The Practical Sovereign is ascertained by deter- 
mining who is the Person (or Body) whose will 
in the last resort prevails (or in case of conflict, 
will be likely to prevail) against all other wills. 
Legal Sovereignty does not depend upon the obe- 
dience actually rendered ; for the law assumes 
obedience to be always enforceable. Obedience 
paid is not a note characterizing the Legal Sove- 
reign, but a Postulate of his existence. That the 
Legal Sovereign does in fact exercise his rights 
under the influence of another person (or body) 
makes no difference. He is none the less a Legal 
Sovereign. A Mikado is Legal Sovereign though 
the Shogun may rule in his name. Thus Legal 
Sovereignty is Formal, not Material. 
Legal Sovereignty is Divisible: i.e. different 



THE NATURE OF SOVEREIGNTY 521 

branches of it may be concurrently vested in 
different Persons (or Bodies), co-ordinate alto- 
gether (Pope and Emperor), or co-ordinate par- 
tially only (President and Congress), though act- 
ing in different spheres. 

Practical Sovereignty seems indivisible, for by its 
definition it can belong to one Person (or Body) 
only, viz. that which is actually the strongest 
(though perhaps not known to be the strongest) 
in the State. But it may be so far divided that 
men obey one ruler in one sphere of action and 
another in another sphere. In the fourteenth 
century, for instance, all Christians obeyed the 
Pope in spiritual matters, their secular govern- 
ment in temporal, and this whether the latter was 
only dc facto or also dc hire. There might of 
course be much dispute as to what were spiritual 
matters, but no one denied that in matters which 
were really spiritual the Church alone should be 
obeyed. 

Legal Sovereignty may be Limited, i.e. the law of 
any given State may not have allotted to any 
one Person (or Body), or to all the Persons (or 
Bodies) taken together, who enjoys (or enjoy) 
supreme legislative (or executive) power, the 
right to legislate, or to issue special orders, on 
every subject whatever. That is to say, some 
subjects may be reserved to the whole People, 
or may be declared unsusceptible of being legis- 
lated on at all, even by the whole people. If there 
be a reservation to the people of an ultimate de- 
cision on all subjects, as for instance by way 
of constant Referendum, the people and not the 
legislature may be the true Legal Sovereign. But 
a right reserved to the people of qualified inter- 
ference, or of altering the powers of the Legisla- 
ture from time to time, does not of itself deprive 
the legislature of legal sovereignty. 



522 THE NATURE OF SOVEREIGNTY 

Practical Sovereignty is, by definition, incapable of 
being limited (for Law has nothing to do with it), 
though the exercise of it by its possessor may be 
restrained by the fear of consequences. 
Although Legal and Practical Sovereignty are dis- 
tinct conceptions, belonging to different spheres, they 
are in so far related that — 

Legal Authority is a potent factor in creating Prac- 
tical Mastery. 
Practical Mastery usually ripens, after a certain 
time, into Legal Authority. 
Thus — 

In an orderly State, the respect for Legal Sove- 
reignty keeps questions of Practical Sovereignty 
in abeyance. 
In a disorderly State, conflicts regarding Practical 
Sovereignty weaken and ultimately destroy the 
respect for Legal Sovereignty. 
To which we may add, with a view to questions to be 
discussed presently — 

Questions of the Moral Rights conferred and the 
Moral Duties imposed by Sovereignty, whether 
Legal or Practical, belong to a different province 
from that in which the determination of the nature 
of either kind of Sovereignty lies. Such questions 
are however in so far related, to these two that — 
Legal Sovereignty carries with it a prima facie moral 

claim to the obedience of all citizens ; 
Practical Sovereignty carries with it no further 
moral claim to obedience than such as arises from' 
the fact that a useless resistance to superior physi- 
cal force tends to breaches of the peace and to 
suffering which might be spared. 
In both cases it may be the duty of the citizen, 
where some higher moral interest than that of 
avoiding breaches of the peace is involved, to re- 
sist either the Legal or the Practical' Sovereign. 
Let it be further noted that though one Ea. obliged, to 



THE NATURE OF SOVEREIGNTY 523 

speak of the Practical Sovereign as exerting a limitless 
power, and as some of those who have written on Sove- 
reignty describe the Sovereign as being subject to no 
restraint whatever, his sole will being absolutely domi- 
nant over all his subjects, there has never really existed 
in the world any person, or even any body of persons, 
enjoying this utterly uncontrolled power, with no exter- 
nal force to fear and nothing to regard except the grati- 
fication of mere volition. The most despotic monarch 
is bound to respect, and often to bow to, the general 
sentiment of his subjects. From some acts even a Sultan 
Hakim in Egypt or a Gian Galeazzo Visconti in Milan 
recoils, because he feels they might provoke an insur- 
rection or bring about his own assassination. A popular 
majority (although also to some extent limited) is less 
sensitive, because individuals, nearly all of them obscure, 
have less to fear. In this sense a democracy, that is to 
say, the majority in a democracy, may be a more absolute 
sovereign than a monarch. But the majority in a demo- 
cracy has fewer personal temptations to abuse power. 
It is moreover checked by the feeling that if it does so 
it may alienate its own more moderate section. Hence 
it becomes tyrannical only when it is swayed by violent 
passion, or when it is sharply divided into two sections 
between whom no moderate party is left. 

V. Roman and Mediaeval Views of Sovereignty. 

Let us now turn to consider the theory of Sovereignty 
which, started by Hobbes, reiterated by Jeremy Ben- 
tham, and set forth with dreary prolixity by John Austin, 
found much acceptance in England during the first three 
quarters of the present century, though it has latterly lost 
its former prestige. The modern form of Hobbes' doc- 
trine (whose original form will be presently stated and 
examined) is recommended by its apparent simplicity 
and completeness. But we shall find it to have the de- 
fects (i) of confounding two things essentially distinct, 



524 THE NATURE OF SOVEREIGNTY 

the sphere of law and the sphere of fact ; (2) of ignoring 
history; and (3) of being inapplicable to the great ma- 
jority of actual States, past or present. It can be 
brought into conformity with the facts only by an elabo- 
rate process, either of rejecting a large part of the facts, 
or else of torturing and twisting the conception itself. 
A rule which consists chiefly of exceptions is not a help- 
ful rule. In the human sciences, such as sociology, eco- 
nomics, and politics, just as much as in chemistry or 
biology, a theory ought to arise out of the facts and be 
suggested by them, not to be imposed upon the facts as 
the product of some a priori views. If it needs endless 
explanations and qualifications in order to adapt it to the 
facts, it stands self-condemned, and darkens instead of 
illumining the student's mind. 

Obviously however no such theory would have 
emerged or for so long commanded respect but for 
causes of considerable weight and permanence. Its ori- 
gin therefore, and the sources of its influence, deserve to 
be carefully examined by the light which history supplies. 
And to explain its origin, one must digress a little from 
our proper theme, and go back to the fountain of 
modern legal ideas in the Roman law. 

The Roman jurists themselves fell into no confusion 
between the rights of a legal sovereign and the powers 
of the actual or (so-called) ' political ' sovereign, for they 
dealt with legal sovereignty only, and dealt with it, not 
as political philosophers, but simply as lawyers. Under 
the Republic, legislative supremacy belonged to the peo- 
ple meeting in their comitia, while a certain control of 
the executive magistrates, springing from the right to 
advise, was practically allowed to the Senate. It may 
be argued that the people could have legally deprived 
the Senate of its executive powers, and those who hold 
this view may if they like hold that the Senate had not 
in technical strictness any sort of sovereignty even in 
executive matters 1 . 

1 As to the Senate's right of legislation, see Essay XTVi p. 716. 



THE NATURE OF SOVEREIGNTY 525 

For our present purpose the important point is the 
period of Justinian, because it was in the form into 
which he condensed it that Roman law affected political 
speculation after the twelfth century. Now Justinian's 
Institutes and Digest still talk of the Roman people as 
possessing of right supreme legislative authority, though 
in point of fact they had not exercised it for more than 
five centuries. And in recognizing the Emperor as the 
person who actually possesses legislative power, they 
deduce his rights from a delegation by the people of 
their rights, and perhaps, if we are to take their words 
strictly, a delegation not in perpetuity to the imperial 
office, but to each individual Emperor in succession. 
Like the English of the seventeenth century, the Ro- 
mans were determined worshippers of legality, and 
sought carefully to obliterate the traces of revolution, 
so they continued for a long time to treat the arrange- 
ment by which supreme authority was vested in a person 
as the holder of certain magistracies as a provisional 
and temporary arrangement 1 . 

It need hardly be said that centuries before Justinian's 
day this doctrine of delegation, for a time formally ex- 
pressed in the so-called lex de imperio passed at the 
accession of each new Emperor, had become a mere 
antiquarian curiosity, no more representing the actual 
facts than the language of the Anglican liturgy regard- 
ing the Crown represents the actual condition to-day 
of the royal prerogative in England. Justinian and his 
successors had in the fullest sense of the word com- 
plete, unlimited, and exclusive legal sovereignty; and the 
people of old Rome, who are talked of in the Digest, by 
the lawyers of the second and third centuries, as the 
source of the Emperor's powers, were not in a.d. 533, 
except in a vague de hire sense, actual subjects of Jus- 
tinian, being in fact ruled by the Ostrogothic king 

1 At one moment, after the death of Caligula, it was proposed in the Senate to 
set to work anew the republican constitution, which had never been formally 
superseded. 



526 TEE NATURE OF SOVEREIGNTY 

Athalarich (grandson of the great Theodorich). But it 
is noteworthy that the lawyers also assigned to the peo- 
ple as a whole, entirely apart from any political organiza- 
tion in any assembly, the right of making law by creating 
and following a custom, together with that of repealing 
a customary law by ceasing to observe it, i.e. by desue- 
tude, and that they justify the existence of such a right 
by comparing it with that which the people exercise by 
voting in an assembly. ' What difference,' says Julian, 
writing under Hadrian, ' does it make whether the peo- 
ple declares its will by voting or by its practice and acts, 
seeing that the laws themselves bind us only because 
they have been approved by the people 1 ? ' 

It need hardly be observed that if Tribonian and the 
other commissioners employed by Justinian to condense 
and arrange the old law had, instead of inserting in their 
compilation sentences written three or four centuries 
before their own time 2 , taken it upon themselves to state 
the doctrine of legislative sovereignty as it existed in 
their own time, they would not have used the language 
of the old jurists, language which even in the time of 
those jurists represented theory rather than fact, just 
as Blackstone's language about the right of the Crown 
to ' veto ' legislation in England represents the practice 
of a period that had ended sixty years before. But those 
who in the Middle Ages studied the texts of the Ro- 
man law cared little and knew less about Roman his- 
tory, so that the republican doctrine of popular sove- 
reignty which they found in the Digest may have had 
far more authority in their eyes than it had in those of 
the contemporaries of Tribonian, to whom it was merely 
a pretty antiquarian fiction. 

These were the legal notions of Sovereignty with 

1 Dig. I. 3, 32, § 1 (cf. Inst. i. 2, 11). In the Institutes of Justinian the Emperor's 
legislative power, though complete, is still grounded on a delegation formerly made 
by the people. 

2 They frequently altered the language of the old jurists to make it suit their 
own time, so it is the more noteworthy that the ancient terms have in this instance 
not been altered. 



THE NATURE OF SOVEREIGNTY 527 

which the modern world started — the sharply outlined 
Sovereignty of an autocratic Emperor, and the shadowy, 
suspended, yet in a sense concurrent or at least resuma- 
ble, Sovereignty of the People, expressed partly in the 
recognition of their right to delegate legislation to the 
monarch, partly in their continued exercise of legislation 
by Custom. 

But there was also another influence, born while the 
autocracy of the early Emperors was passing from the 
stage of power de facto into that of sovereignty de lure, 
which told with no less force upon the minds of men 
during the Middle Ages, and also in the later days 
when a freer philosophy began to attack the problems 
of political science. While to the educated classes in 
old Rome the Emperor's legal Sovereignty bore the 
guise of a devolution from that of the People, his pro- 
vincial subjects, who knew little or nothing of these legal 
theories, regarded it as the direct and natural conse- 
quence of Conquest. By the general, probably the 
universal, law of antiquity, capture in war made the cap- 
tured person a slave de hire. Much more then does con- 
quest carry the right of legal command. Conquest is 
the most direct and emphatic assertion of de facto supre- 
macy, and as the de facto power of the Romans covered 
nearly the whole of the civilized world, maintained itself 
without difficulty, and acted on fixed principles in a regu- 
lar way, it speedily passed into Legal Right, a right not 
unwillingly recognized by those to whom Roman power 
meant Roman peace. This idea is happily expressed 
by Virgil in the line applied to Augustus — 

' Victorque volentes 
Per populos dat iura,' 

while the suggestion of a divine power encircling the 
irresistible conqueror, an idea always familiar to the 
East, appears in the words 

' viamque adfectat Olympo,' 
which complete the passage. 



528 TEE NATURE OF SOVEREIGNTY 

The feeling that the power actually supreme has re- 
ceived divine sanction by being permitted to prevail, 
that it has thereby become rightful, and that it has, be- 
cause it is rightful, a claim to obedience, is clearly put in 
writings which were destined, more than any others, to 
rule the minds of men for many centuries to come. 

' Let every soul be subject unto the higher powers. For there 
is no power but of (= from) God : the powers that be are or- 
dained of God. Whosoever therefore resisteth the power, resist- 
eth the ordinance of God : and they that resist shall receive to 
themselves damnation {lit. judgement). For rulers are not a 
terror to good works, but to the evil. Wilt thou then not be 
afraid of the power ? do that which is good, and thou shalt have 
praise of the same; for he is the minister of God to thee for good. 
But if thou do that which is evil, be afraid ; for he beareth not the 
sword in vain: for he is the minister of God, a revenger to exe- 
cute wrath upon him that doeth evil' (Rom. xiii. 1-5). 

' Submit yourselves to every ordinance of man for the Lord's sake; 
whether it be to the Emperor, as supreme, or unto Governors, as 
unto them that are sent by him for the punishment of evildoers, 
and for the praise of them that do well. For so is the will of 
God, that with well-doing ye may put to silence {lit. bridle) the 
ignorance of foolish men ' (1 Pet. ii. 13-15). 

Here the authority of the Emperor is not only recog- 
nized as being de iure because it exists and is irresisti- 
ble, but is deemed, because it exists, to have divine sanc- 
tion, and thus a religious claim on the obedience of the 
Christian, while at the same time, in the. reference to 
the fact that the power of the magistrate is exercised, 
and is given by God that it be exercised, for good, there 
is contained the germ of the doctrine that the Power 
may be disobeyed (? resisted) when he acts for evil; as 
St. Peter himself is related to have said, ' We ought to 
obey God rather than men ' (Acts v. 29). 

These and other similar dicta in the New Testament 
are not only evidence of the sentiments of Roman pro- 
vincials under the earlier Empire, but are also the doc- 
trines, delivered under the highest authority, from which 



THE NATURE OF SOVEREIGNTY 529 

mediaeval thought starts. How they are worked out may 
be seen by examining the reasonings of Dante in his 
Dc Monorchia, or, still better, the political theories of 
St. Thomas Aquinas. From the fifth to the sixteenth 
century whoever asked what was the source of legal 
Sovereignty, and what the moral claim of the Sovereign 
to the obedience of subjects, would have been answered 
that God had appointed certain powers to govern the 
world, and that it would be a sin to resist His ordinance. 
From the eleventh century onwards it was admitted in 
Western Christendom, though less cordially in France, 
Spain, or England than in Italy and Germany, that there 
were two Legal Sovereigns, and according to the view 
more generally held, each was de hire absolute, the Pope 
in spiritual, the Emperor in temporal matters. Both 
Pope and Emperor were above all positive secular Law, 
but subject to the Law of Nature and the Law of God, 
these being virtually the same 1 . The power of the Pope 
came immediately from God, through the institution of 
Peter as chief bishop. The Emperor's power, almost 
equally incontestable, had a double origin. According 
to the New Testament, that power came from God ; ac- 
cording to the Roman law, it had been delegated by the 
people, the ultimate source of civil authority. St. 
Thomas Aquinas recognizes sovereignty as originally 
and primarily vested in the people, hardly less explicitly 
than does the Declaration of Independence. These two 
views were capable of being combined, and the theory 
of delegation did not really reduce the Emperor's au- 
thority, for there was no actual people capable of recall- 
ing the rights delegated 2 . But there was also another 
doctrine, according to which the Emperor drew his 
rights from the Pope, who crowned him, and who as 



1 See as to the distinction between that part of the Law of God which is also the 
Law of Nature and other parts thereof, Essay XI, p. 594- 

2 Nevertheless the followers of Arnold of Brescia in Rome attempted to claim 
for the Roman people the right of choosing the Emperor ; while there were others 
who argued that the true representatives of the old Roman people were to be 
found in the whole Christian community of the Empire. 

34 



530 THE NATURE OF SOVEREIGNTY 

spiritual Sovereign exercised a higher jurisdiction, being 
responsible for the welfare of the Emperor's soul. After 
the days of Pope Gregory the Ninth and the Emperor 
Frederick the Second, the doctrine held by nearly all 
churchmen of the inferiority of imperial to papal au- 
thority damaged the Emperor's position. It suffered 
still more because after those days the Emperor did not 
rule de facto outside Germany, and not always even 
within it. Most jurists, however, continued to hold that 
the rights of the successor of Augustus still existed 
everywhere de iure, though it was admitted that they 
consisted only in a sort of over-lordship, which, always 
ineffective in practice, became constantly more eva- 
nescent in theory. Controversy continued to rage over 
the limits to be drawn between them and the parallel 
sovereignty of the successor of Peter ; and this contro- 
versy produced in the fourteenth century an anti-eccle- 
siastical movement represented in literature by such men 
as Marsilius of Padua and the English Franciscan Will- 
iam Occam. In those writers one finds the germs of the 
doctrine, afterwards famous, which refers the origin of 
the State to the free consent of individual men. 

In these mediaeval controversies it was assumed 
throughout and on all sides that power de facto must 
follow Sovereignty de iure. But this Sovereignty, al- 
though above positive law, being indeed the source of 
such law, was deemed to be held subject to the Law of 
Nature, since it is a trust from God. However, as it 
became more and more clear that the Emperor was 
ceasing to be an effective ruler, the temporal sovereignty 
of local kings was fully admitted, and their rights were 
based partly on the providence of God; which had al- 
lowed them de facto power, partly on the feudal relations 
of lord and vassal, formed by reciprocal promises of pro- 
tection on one side, of loyal support on the other. 



THE NATURE OF SOVEREIGNTY 531 

VI. Modern Theories of Sovereignty. 

The sixteenth century brought with it four momentous 
changes, any one of which would have alone been suffi- 
cient to shake the existing fabric of thought and belief : — 

The Emperor died out as universal Sovereign, and 
became thenceforth little more than a German monarch, 
with a titular precedence over other princes. 

The Pope was gravely wounded by a revolt which 
ended by withdrawing half Europe from his sway. 

The feudal structure of society began to crumble 
away, and therewith the power of the Crown in each 
country grew. 

A new spirit of inquiry, sceptical in its tendencies and 
no longer deferential to authority, sprang up in Western 
and Southern Europe. 

Thus that traditional doctrine regarding the basis of 
authority which had been sufficient for the Middle Ages 
faded into dimness. Morals began to be separated from 
theology, and the outlines of political science to emerge 
from feudal law. Men asked what was the basis of a 
king's claim to be obeyed. Did Might give Right? or 
did Right give Might? What was Right itself? Were 
there any, and if so, what, moral or religious limitations 
on the powers of a monarch? and if so, did his transgres- 
sion of these limitations justify rebellion against him? 
These were not purely speculative questions, because 
the wars of religion, which brought bodies of subjects 
into collision with monarchs of a faith opposed to their 
own, and the Pope into collision with Protestant mo- 
narchs, raised issues of principle that were momentous, 
not merely because they troubled conscientious minds, 
but also because men felt the need of guidance and 
sought for it in some belief which could stimulate and 
inspire their action. Kings were everywhere extending 
their functions and assuming, more than ever before, the 
work of legislators, while at the same time subjects found 
that new reasons had arisen for resisting kings. The 



532 THE NATURE OF SOVEREIGNTY 

old theory which deduced the rights of kings from the 
grant of authority divinely made to Peter and to Caesar 
was outworn. A new explanation of the nature of poli- 
tical society was needed ; and from that time onward 
new theories of State power began at intervals to 
appear. 

The particular form taken by the problems which these 
theories attempted to solve was determined by the con- 
ditions of a time in which the coherence of nations and 
states was threatened on the one hand by religious dis- 
cord, and on the other by the claims of local magnates 
as against the Crown. Hence the aim of thinkers was 
to discover something which would secure the unity of 
the State. They asked, What is it that holds the State 
together? Must there not be some supreme Force to 
overcome the various forces that in each State make for 
division? Where is that Force to be found? Whence 
comes its title to rule? In what persons should it be 
vested? Can it be, or ought it to be, checked? These 
thinkers did not approach such questions by an induction 
from the facts of actual states, as we should do, but were 
guided partly by the dogmas of law and theology which 
the Middle Ages had bequeathed to them, partly by ab- 
stract theories which their advocacy of kingly authority, 
or papal claims, or popular rights, suggested. And this 
explains why the Roman Catholic writers, who might 
have been expected to maintain the absolute sovereignty 
of kings for the purpose of crushing out heresy, are often 
found defending the rights of the people, and arguing 
for the right to revolt against and depose a heretical 
monarch, such as Henry the Eighth, or Elizabeth, who 
had fallen away from obedience to that ecclesiastical 
authority whose rights came from the grant to St. 
Peter. 

The first theory, or at least the first which exerted 
wide influence, was that of Bodin, a French jurist, whose 
book, in its earliest form, was published in 1576. In his 
view Sovereignty or Maiestas is the highest power in a 



THE NATURE OF SOVEREIGNTY 533 

State, which is subject to no laws, but is itself the maker 
and master of them. It may reside either in one person, 
which is the best and normal form, or in a number of 
persons. But in either case it is above all law, incapable 
of limitation or division, and having an absolute claim 
to the obedience of all its subjects, irrespective of the 
justice or policy of its acts. Hence Bodin rejects all so- 
called limited monarchies and restricted governments ; 
and while he calls the Romano-Germanic Empire of his 
day not a monarchy but an aristocracy, he finds in the 
French monarchy a pure autocracy of the proper type. 
Nevertheless even Bodin admits that, in some sort of 
vague way, the Sovereign is subject to the Law of God 
and the Law of Nature, and conceives that he is there- 
fore bound to perform any contracts he may make, 
and to respect the rights of property and of personal 
freedom. 

The boldest and most logically complete counter 
theory to that of Bodin came from a younger contem- 
porary of his, the Calvinist Iohannes Althusius (John 
Althus or Althaus), who was born in 1557, and died in 
1638. Calvin himself, and most theologians of his 
school, had returned to the ancient theocratic view that 
civil power is derived from God, dwelling especially on 
Romans viii. 1. Althusius, however, bases the govern- 
ment of the State on a contract between the people and 
the ruler, and proceeds to assert the rights of the former, 
as the ultimate source of all power and the only true and 
permanent depositary of sovereignty, to depose the ruler 
and resume the delegated power when he has violated 
his duties and transgressed the measure of authority 
granted to him 1 . 

Nearly a century later than Bodin a scheme similar 
to his, but more thorough-going was propounded by 
Thomas Hobbes of Malmesbury. This scheme, con- 

1 A full and instructive account of this writer's theories is contained in the 
admirable book of Professor Otto Gierke, Johannes Althusius und die Entwickel- 
u?igder naturrechtlichen Staatstheorien, which is a repertory of information re- 
garding mediaeval and post-mediaeval doctrines of the State. 



534 THE NATURE OF SOVEREIGNTY 

tained in the book entitled Leviathan (and in the treatise 
De Cive), cannot be appreciated without remembering 
the time when the book was written, and the circum- 
stances to which it was addressed. So directly does it 
contemplate them that it may almost be called a political 
pamphlet — gigantic, but a pamphlet. The Civil War 
was raging. The supreme power in England was dis- 
puted between the King and the House of Commons. 
Ecclesiastics, both Episcopalian and Presbyterian, had 
been prominent in claiming authority for their religious 
views, and the nation was splitting up partly on politi- 
cal, partly on ecclesiastical lines. Hobbes was equally 
hostile to all ecclesiastics — to the Anglican theory of 
divine right, and to the Presbyterian theory of a cove- 
nant of the people with God. Yet he did not like to base 
society upon mere force, because in that he could find 
no foundation for justice or moral obligation. Hence 
he clung to the notion of a contract. But it was a new 
kind of contract, which, not being made with the Sove- 
reign, and being itself irrevocable, can give no ground 
for insurrection. Seeing disunion and confusion all 
around him, and men divided by the pretensions of jar- 
ring authorities, Hobbes conceived that the three things 
needful were (i) to find a basis for power which should 
be permanent and inexpugnable, (2) to make power one 
and indivisible, and (3) to make it absolute and limitless. 
Perceiving the flaws in the theory, as old (in a rude form) 
as the thirteenth century, which founded government on 
a compact b'etween Sovereign and People, he bases his 
Sovereignty on a covenant of each member of the com- 
munity with every other member to surrender all their 
several rights and powers into the hands of one Person 
(or Body), who thereby becomes Sovereign, but as 
against whom, seeing that he is not himself a party to the 
compact, it cannot be annulled by those who made it, 
because they made it not with him but with one another. 
His authority is therefore permanent and unlimited ; 
nor is he, like Bodin's Sovereign, bound by any pre- 



THE NATURE OF SOVEREIGNTY 535 

existing institutions. As the people have, by antici- 
pation, ratified all his acts, everything that he does, 
however harsh, is just, and gives them no ground for 
complaint. Indeed his power is justified by the Law of 
Nature, because the three fundamental Laws of Nature 
are (i) that all men should endeavour to secure peace, 
(2) that an individual man should renounce his original 
rights when the majority will to do so, (3) that every 
man should observe the covenants which have been made 
by him, including of course this supreme covenant. 

Though Hobbes is chiefly concerned with establish- 
ing his Sovereign dc hire, and making his de iure auto- 
cracy complete, he does also conceive him as enjoying 
complete dc facto power. He could indeed do no other- 
wise, for the Sovereign he describes is not an actual 
Sovereign. Hobbes does not profess to be anaylsing 
existing States, or explaining existing institutions. He 
is presenting an ideal State, and arguing that mankind 
(and in particular England) will never be rid of their 
present troubles until this Absolute Sovereign of his 
has been installed with a dc iure title so fully recognized 
that dc facto power will follow. The Civil War had raised 
grave questions in the dc hire sphere, and it was natural 
to believe that, were those questions out of the way, 
Practical Mastery would accompany Legal Sovereignty. 
Nor was it so strange as some may fancy to-day, that a 
philosopher should doubt the possibility of securing 
peace and order under a monarch limited by law, or in- 
deed under any government consisting of elements so 
antagonistic as Crown, Lords, and Commons, were then 
showing themselves to be. Hobbes is a thinker of singu- 
lar clearness and precision. He is cogent in argument, 
and adheres to his main propositions with a consistency 
greater than Bodin had shown. He sometimes seems 
more disputatious than philosophical. But the reader 
who would judge him fairly must bear in mind that he is 
writing with a view to the circumstances of his own 
time, delivering his blows now at the Solemn League 



536 TEE NATURE OF SOVEREIGNTY 

and Covenant, now at the Levellers, now at the parlia- 
mentary legalists 1 . 

Towards the end of the following century Bentham 
revived Hobbes's doctrine of Sovereignty, taking it over, 
however, not so much as either an ideal conception, or 
a suggestion pointing a way out of civil war, but rather 
as embodying the characteristic features of a normal 
State. Bentham was a man of extraordinary ingenuity, 
fertility, and boldness, but. he was sometimes heedless; 
he lived before the days of what we call the historical 
method, and he had a hearty contempt, if not for history, 
yet for the legal institutions it had produced, which in- 
deed he thought mostly wrong. Accordingly, neither 
the absolutistic proclivities of Hobbes, nor the inappli- 
cability of the Hobbesian theory to the majority of exist- 
ing governments, deterred him from adopting a doctrine 
which pleased him by its subjection of vague morality 
to precise legality, and by its vigorous assertion of the 
legal omnipotence of an authority which a reformer of 
his drastic type needed for the accomplishment of his 
purposes. Bentham therefore had practical reasons for 
his adhesion to the scheme of Hobbes, far removed as 
he was from Hobbes's notions of the anarchic State of 
Nature and the original covenant. But John Austin, 
Bentham's disciple, had less excuse for the use he made 
of Hobbes's speculations. It has been doubted whether 
he understood Hobbes. However this may be, he would 
seem to have misconceived the position in which Hobbes 
stood, and to have taken the latter's argument for an 
absolute Sovereign as the best way of constituting au- 
thority in a State, as a philosophical analysis of the na- 
ture and essence of authority in a normal State. Hobbes 
was the advocate of a scheme intended to cure actual 
political evils. Bentham was a practical reformer of 
the law, which certainly needed reform. Austin, how- 

1 Hobbes goes so far as to wish to extinguish the right of private judgement, 
and deems it part of the duty of the Sovereign to prescribe opinions to his subjects, 
and in particular to inculcate the true doctrine of Sovereignty. 



THE MATURE OF SOVEREIGNTY 537 

ever, wrote as a jurist, professing to describe the normal 
and typical State. He was therefore bound to have 
some regard to facts, and to present a theory of the 
State which would have explained and correlated the 
facts, putting them in their natural and true connexion. 
Instead of this he has given us a theory, which is so 
far from being that of the normal modern State, that it 
is applicable to only two kinds of States, those with an 
omnipotent legislature, of which the United Kingdom 
and the late South African Republic are almost the only 
examples, and those with an omnipotent monarch, of 
which Russia and Montenegro are perhaps the only in- 
stances among civilized countries. In nearly all free 
countries, except the United Kingdom, legislatures are 
now restrained by Rigid constitutions, so that there 
is no Sovereign answering the Austinian definition. In 
all Muhamadan countries the monarch is legally, as well 
as practically, restrained by his inability to change the 
Sacred Law ; so that, even in those countries where des- 
potism seems at first sight enthroned, the definition 
will not work. Even in the application of his own theory 
to the United Kingdom, Austin falls into an error which 
betrays its radical unsoundness. Though he defines a 
Sovereign as - the determinate superior who receives 
habitual obedience from the bulk of a given society ' — 
a definition which belongs to the de facto sphere and 
suits a de facto sovereign, but does not touch the de hire 
sovereign, who may have no means of enforcing obe- 
dience — still it is plain that his eye is chiefly fixed on 
law and legal right, and that he assumes that to the per- 
son who enjoys legal right obedience will in fact be ren- 
dered. A Greek tyrant, such as Agathocles at Syracuse, 
received habitual obedience from the bulk of the Syra- 
cusans ; but he was clearly not Sovereign dc iurc 1 . But 
Austin, when he comes to the United. Kingdom, finds 

» Austin so far feels the difficulty of fitting his theory to the case of tyrannies as 
to imply that it is to be applied in settled States only. But this is to admit pro 
tanto the inadequacy of the theory. 



538 THE NATURE OF SOVEREIGNTY 

his Sovereign not in Parliament, that is to say, in the 
Great Council of the Nation consisting of the Crown, the 
House of Lords, and the House of Commons, but in 
the two former parts of Parliament, along with — not the 
House of Commons, but — the qualified electors of the 
nation ! This view is opposed not only to law, but also 
to history, which shows that the Great Council of the 
Nation has never been deemed to consist of or include 
' trustees ' (as Austin calls them) for the Nation, but to 
be the Nation itself, assembled for national purposes, its 
members being either in their own right or, as repre- 
sentatives, plenipotentiary, and enjoying, in contempla- 
tion of Law — just as much as did the primitive Folk 
Mot from which Parliament has gradually developed — 
the plenitude of the nation's powers. It is moreover 
opposed to the facts of the case, because the electors of 
the country do not legislate, and have no legal means 
of legislating. Their consent is not required to the va- 
lidity of the most revolutionary Act of Parliament, as 
the consent of a majority of the Swiss electors and Can- 
tons is required to a change in the Constitution of the 
Helvetic Confederation. A statute might conceivably 
be passed, of which five-sixths of the electors notoriously 
disapproved, and yet it would be just as good a statute 
as one against which no voice had been raised. Parlia- 
ment may even give itself a competence which the elec- 
tors never contemplated, as it did when it passed the 
Septennial Act. 

Some of those who have admitted that Bentham's and 
Austin's theory is historically indefensible, have sought 
to excuse its faults on the ground that we must test 
theories, not by the facts of nascent communities, but 
by those which the fully-grown modern State presents. 
But it is in truth quite as inapplicable to most of these 
modern States as it is to ruder societies. Take, for in- 
stance, the Austro-Hungarian monarchy. Where, on 
Austin's principles, does Sovereignty reside in this dual 
State ? The ultimate legislative authority, that is to say, 



THE NATURE OF SOVEREIGNTY 539 

the authority which receives commands from no other 
authority, but gives them to others, is to be found in the 
so-called Delegations, each composed of thirty mem- 
bers of the Hungarian Parliament, and as many of the 
Austrian Reichsrath. But these are themselves chosen 
by the two subordinate Parliaments, and must therefore 
be subordinate to them, if the British House of Com- 
mons is subordinate to the British Electorate. More- 
over, the Delegations can legislate on a few prescribed 
subjects only, all other subjects belonging either to the 
two Parliaments respectively, or, in the case of Austria, 
to the legislatures of the several provinces {Kronlandc) 
which make up the Austrian federation, and the Delega- 
tions derive their authority from laws passed by the 
Austrian Reichsrath and by the Hungarian Parliament. 
Where then does Sovereignty reside? Is it in the au- 
thorities which made the Constitution? The Austrian 
half of the Monarchy received its Constitution from 
five Statutes passed in 1867, which can be changed only 
by a two-thirds majority in both Houses of the Reichs- 
rath; the Hungarian half from the laws of 1848, which 
the Emperor King agreed to bring into force in 1867, 
and which apparently the Parliament, with the consent 
of the Monarch, can amend. There is evidently no hope 
of finding any one Sovereign, in the sense of the Aus- 
tinian definition, for this great and powerful State 1 . 
Or take the United States, whose Constitution has be- 
come a sort of model for many more recent confedera- 
tions. Austin places Sovereignty in the ultimate power 
which can alter the Constitution, viz. the people (or 
peoples) — I use both phrases to avoid controversy — 
of the States. But in the first place, the people (or peo- 
ples) of the States are not a body habitually acting. 
They did not act at all from 18 10 till 1867. They have 

1 An Austinian might perhaps say that the Austro-Hungarian monarchy consists 
of two separate States, with no single Sovereign. But it is unquestionably one 
State in the eye of international law, and the Delegations have some powers in- 
compatible with the existence of an Austinian sovereign in either half of the 
monarchy. 



540 THE NATURE OF SOVEREIGNTY 

not acted since 1870. It was because it was impossible 
to get them to act that the question of slavery proved 
insoluble by constitutional means. Is there not some- 
thing unreal and artificial in ascribing Sovereignty to a 
body which is almost always in abeyance? Moreover, 
the majorities by which the Constitution can legally be 
amended are very rarely attainable ; and when they are 
not attainable, there would therefore seem to be no 
Sovereign at all. And as regards one point — the equal 
representation of the States in the Senate, even a three- 
fourths majority of States can do nothing against the 
will of the State or States proposed to be affected, a fur- 
ther absurd result of the doctrine. One might pursue the 
argument by examining the case of other federations, 
such as the Germanic Empire, both the old one and the 
new one, and show to what strange results these Aus- 
tinian principles would lead. But the above illustra- 
tions may suffice to indicate the extreme artificiality of 
the doctrine that Sovereignty cannot be divided, as ear- 
lier illustrations have shown the inconveniences of con- 
founding purely legal supremacy with actual mastery. 

Austin denies that there is any difference between 
a government de iure and one de facto, because Sove- 
reignty de iure must itself issue from the Sovereign him- 
self, and the same person cannot be both creature and 
creator. If this means that the British Parliament and 
the Czar, being legally omnipotent cannot be legally 
controlled, it is an obvious, but infertile remark, and it 
conceals the really material fact that both authorities 
are obeyed because the long-settled custom or law of 
the country has formed the habit of obeying and the 
notion that it is a duty to obey. If it means that every 
Sovereign de facto is also Sovereign de iure, or the con- 
verse, it is untrue. Hobbes had a reason for bringing 
in obedience as the test of the Sovereign. Bentham and 
Austin have not this reason, for they are in the sphere 
of law, and law is not concerned with obedience as a 
fact. The right of a Sovereign to be obeyed does not 



THE NATURE OF SOVEREIGNTY 541 

to the lawyer rest on Force, for he assumes that wher- 
ever law exists it will make itself prevail. 

VII. Questions regarding Sovereignty liable 

TO BE CONFOUNDED. 

Iii most of the speculations of the school which traces 
its origin to Hobbes, and indeed in some of Hobbes' 
critics also, there would seem to be a confusion of two 
or more of six different things, viz. : — 

1. The conception and definition of legal supremacy. 

2. The conception of practical mastery. 

3. The historical question as to the origin of the no- 

tion of Legal Right. 

4. The historical question as to the origin of organized 

political communities in general, and of the habit 
of obedience therein. 

5. The moral obligation on the members of a State 

to render obedience to the authorities within 
it, whether those authorities rule by law or by 
force. 

6. The moral obligations which bind the holder of 

power, whether de hire or de facto. 

In the hands of Bentham, whom Austin follows, the 
two last-mentioned confusions, which exercised men's 
minds in the days of Hobbes and Locke, have disap- 
peared. Bentham has seen, and has stated with admira- 
ble clearness, the line which divides the province of 
morality from that of legal obligation. 

But he has mixed up the other four, and especially 
the first two — for it is rather by implication than by ex- 
press words that his writings cover the questions of 
the historical origin of Right and of the State — in a way 
that has clouded the mind of many a student since his 
time, and has in particular produced two capital errors, 
that of regarding Law as primarily and normally a com- 
mand, which it certainly was not at first and is only 
partially now, and that of denying the legal quality of 



542 THE NATURE OF SOVEREIGNTY 

Customary Law, which has been in all countries the 
most fertile, and is still in some practically the only 
source of law. This confusion seems to have been due 
mainly to two causes. One is the omission of the fol- 
lowers of Hobbes to pay any regard to the history of 
States and Governments, and to perceive that in many 
stages of their growth the definitions which may suit a 
normal modern State are quite inapplicable. The other 
is the attempt to find concise and summary definitions 
and descriptions which will suit all modern States gene- 
rally, whatever their diversities from one another, or 
(to put the same thing in a different form) the habit of 
arbitrarily assuming one kind of modern State to be the 
normal State, even though the trend of recent tendency 
may be away from that type. The remark of Bacon, 
that men are prone to assume a greater uniformity in 
Nature than in fact exists, and to conceal real distinc- 
tions under identical nomenclature, finds an application 
in the moral and political sciences as well as in the 
sciences we call physical. This besetting sin of those 
who frame logical classifications upon the basis of ab- 
stract notions has led the so-called Analytic School of 
jurists sometimes to ignore the most material facts, 
sometimes to twist their definitions into a sense far 
removed from the natural meaning of the words they 
use. 

The truth seems to be that the difficulties which have 
been supposed to surround the subject of Sovereignty 
are largely factitious difficulties, and spring from the at- 
tempts made to answer questions essentially different 
by the same terms. Had the qualifying terms de hire or 
de facto been added every time the word ' Sovereignty ' 
was used, most of these difficulties would have dis- 
appeared. If we take the six questions just stated, and 
examine each by itself, there will be nowadays no great 
conflict of opinion as to the answer which each ought- to 
receive. 

Questions I and 2 have been already dealt with. 



THE NATURE OF SOVEREIGNTY 543 

When the qualification de hire or de facto, as the case 
may be, is in each case added, there need be no more 
mystery about either of them. 

As regards 3 and 4, i.e. the origin of political power, 
whether de facto or de hire, the reply of history is un- 
equivocal. There never was and never could have been 
any social contract in the sense either of Hobbes or of 
Rousseau or of any of the other philosophers who have 
discovered in such a fact the foundation of organized 
society. Political communities, as every one will now 
admit, grew up of themselves under the influence of the 
needs of common defence, of religious belief, of habit, 
of the aggregative and imitative instincts of mankind. 
Law grew out of custom, and showed itself first, in most 
races, in the form of rules for the settlement of disputes, 
whether regarding property or regarding the compensa- 
tion to be made for murder or other personal injury. 
It cannot be said that (as a general rule) authority based 
on physical force, the form in which Sovereignty de facto 
is commonly supposed to have begun, preceded autho- 
rity de hire, for the two have usually grown up together, 
custom having in it an element of fear and an element 
of moral deference ; and in this growth physical force has 
played no such predominant part as the school of Hobbes 
and Austin assign to it. Just as in the case of each in- 
dividual man the most important, if not the largest 
part of his knowledge is that which he acquired in the 
semi-conscious years of childhood, so the chief part of 
the work of forming political societies was done by 
tribes and small city communities before they began to 
be conscious that they were forming institutions under 
which to live: and the leading conceptions of law and 
procedure were definite and potent before the begin- 
nings of that direct legislation by a Sovereign which is 
now represented as the normal action of an organized 
political body. Nor is the power of the community as 
a whole, apart from its titular Sovereign or its represen- 
tative organs, extinct to-day. It survives in the vague 



541 THE NATURE OF SOVEREIGNTY 

but irresistible force of public opinion which controls all 
those organs. 

When we come to the two last of the above questions 
(5 and 6) we find that a sharp distinction between Legal 
Sovereignty and Practical Mastery makes it easier to 
solve the problems they raise. Obedience to a ruler 
who is Sovereign only de facto and not also dc iure is not 
now deemed a duty, unless the ruler de lure be powerless, 
or cannot be ascertained, in which cases it may be for the 
general good that the actual holder of power, even un- 
lawfully obtained, should be supported as against an- 
archy or the prospect of civil war. But to our minds 
power de facto, apart from legal sanction, carries no title 
to respect. When it is abused, the good citizen not only 
may but ought to resist it. 

With the Sovereign de lure the case is different. He 
has a prima facie claim to obedience, which can be re- 
butted or disregarded only in one of three events, (a) 
if he has lost dc facto power, and is therefore unable to 
perform a Sovereign's duties, (b) if he has, in a State 
where his powers are limited, himself so gravely trans- 
gressed the constitution or laws as either legally or 
morally to forfeit his Sovereignty, (c) if in a State where 
his powers are not limited by the Constitution he has 
so abused his legal power as to become in fact a Tyrant, 
a foe to the objects of peace, security, and justice, for 
which government exists. In each of these cases it 
would be now generally held that the citizen is absolved 
from his allegiance, and that the sacred right of insur- 
rection which the French of the Revolution and their 
friend Jefferson so highly prized must come into play. 
In case (b) the proper course would seem to be to resist 
the de iure Sovereign by constitutional means, so far as 
they will go, and only in the last resort by force. If 
his transgressions have gone so far as to work forfeiture 
of his legal rights, he is of course no longer Sovereign 
de iure. In case (c), where no constitutional remedy 
exists, the formerly de iure ruler, since he has made 



TEE NATURE OF fiOVEKElUNTY 545 

himself a mere Tyrant or ruler against law, has created 
a state of war between himself and the citizens, and oppo- 
sition to him becomes (as in the case of the mere de facto 
tyrant) a duty which is of stronger or weaker obligation 
according to the greater or less enormity of his offences, 
and the greater or less prospect of success in such 
opposition. 

As respects the moral restraints by which the Sove- 
reign, whether de facto or dc hire, ought to hold himself 
bound, few will now dispute that they are substantially 
the same as those which bind an individual man in the 
ordinary relations of human life. Each must use his 
power in accordance with the general principles of jus- 
tice and honour, regarding actual power as a trust from 
Divine Providence, and legal power as a trust from the 
community also. Only in a single point would it seem 
that there may be a difference, though one whose limits 
are difficult to fix in practice, between the moral duty 
of a Sovereign and that of an individual good citizen. 
Both are equally bound to strict justice, strict good 
faith, strict avoidance of cruelty, or even unnecessary 
harshness. But while the individual ought often to be 
not merely just but also generous, since it is only his 
own resources which generosity will impair, it is sug- 
gested that the Sovereign has no right to be generous 
out of the resources of the community for which he is 
only a trustee. Similarly, while the good man may risk 
his own life to save the lives of others, the ruler must 
not risk the life of the community, because he has not 
been entrusted with any such power. To this it has been 
answered that the Sovereign is entitled to assume that 
the community ought to desire and will desire that its 
powers should be exercised in the best and highest spirit 
for the good of its members and of the world, and that 
he may upon this assumption do everything which a 
high-minded community would do were it consulted. 
The question, though seldom a practical one, is both in- 
teresting and difficult, for even if the analogy of trustee- 
35 



546 THE NATURE OF SOVEREIGNTY 

ship be admitted, there is room for much controversy as 
to the application of the principle in each particular case. 

Some few publicists have argued that the Sovereign 
Power in a State is entirely discharged from all moral 
obligations when it is a question of preserving the exist- 
ence of the State itself, and that violence, injustice, and 
bad faith then become legitimate expedients. In reply 
to such a detestable doctrine, it is enough to observe 
(first) that as the Sovereign would be himself the judge 
of what does involve the life of the State, he would be 
sure to abuse his freedom from moral ties in cases where 
the supposed justification did not really arise, and that 
thus all confidence of one nation in the good faith of an- 
other would be destroyed, and (secondly) that the argu- 
ment must go so far as to put the claim of a State to 
preserve its collective existence higher than that of the 
individual to preserve himself from death, for no one 
will contend that an individual is justified in killing an- 
other man (except of course in self-defence) or bringing 
a false charge against him, for the sake of saving his own 
life. 

This question need not be pursued, because it lies 
rather outside the particular subject with which we are 
here concerned. But a few words may fitly be said re- 
garding the bearing of the distinction between that which 
exists de hire and that which exists de facto on the ques- 
tions that have arisen regarding Sovereignty in the 
international sphere. 

VIII. Sovereignty in International Relations. 

In that sphere there is no Law, in the strict modern 
sense, because no superior authority capable of adjudicat- 
ing on disputes and enforcing rules, and therefore we can- 
not speak of the Sovereignty of one State over another 
State in the same sense in which a Person or Body within 
a State may be called Legally Supreme over the subjects. 
Nevertheless, where some legal tie has been created be- 



TEE NATURE OF SOVEREIGNTY 547 

tween two or more States, placing one in a lower posi- 
tion, we may say that inferiority exists de iure, while if 
there is merely an actual and continuing disposition of 
the weaker one to comply with the wishes of the stronger, 
there is inferiority de facto. Where the laws made by 
the legislative authority of one State directly bind the 
subjects of another State, the latter State cannot be 
called in any sense Sovereign. But between this case 
and that of absolute independence there are several 
grades of what may be called semi-Sovereignty, or (per- 
haps more correctly) imperfect Sovereignty. The de- 
pendent State, though not amenable to the laws or courts 
of the superior one, may have no right to hold diplomatic 
relations with other States, or may, though entitled to 
send and receive envoys, have bound itself by a treaty 
with the superior State to submit for the approval of 
the latter any treaty it may conclude. Or again, it may 
have formally accepted the protection of the superior 
State, or have undertaken to receive its executive head 
from the latter, or to pay tribute to the latter. In all 
such cases the tie duly formed between the superior and 
inferior State, and notified to other States, is a fact of 
high diplomatic moment in determining the interna- 
tional status of the inferior State. Other States are 
bound by international usage to take note of the fact, 
and for one of them to attempt to send an ambassador 
to, or make a treaty with, an inferior State which had 
bound itself to a superior State in the way above indi- 
cated, would constitute a grave breach of comity — 
would be treated as what diplomatists call ' an unfriendly 
act.' Although, therefore, there is no Law, in the strict 
sense of the word, binding these inferior States, but only 
a Contract, still they may appropriately be said to be 
de iure dependent, or imperfectly sovereign. The world 
is full of them. There are a great many in India, bound 
to the British Crown by engagements which make them 
more or less subject to British control. Rumania and 
Servia were formerly in this position. There is one left 



548 THE NATURE OF SOVEREIGNTY 

in South-Eastern Europe, Bulgaria, although the tie 
binding it to the Turkish Sultan is wearing very thin 1 . 
Bulgaria is not precluded from sending envoys and mak- 
ing treaties. There is one in North Africa — Tunis — 
which is now, in all but name and legal intendment, a 
province of France. Another African case, that of the 
late South African Republic, which, though it could 
accredit and receive envoys, was liable to have any treaty 
made by it (except with its neighbour republic) disap- 
proved by Great Britain, has given rise to much contro- 
versy. Probably it should not have been called either an 
internationally Sovereign State, or a Dependent State, 
but rather a State dependent for one particular purpose 
and independent for others. The position of Egypt — 
which is de hire part of the Ottoman Empire for some 
purposes, is also de hire (for certain other purposes) 
under the control of six European Powers, and is de facto 
under the control of one of those six — is a very peculiar 
one. The varieties of relation in which one State may 
legally stand to another are indeed endless, and elude 
any broad classification. 

Quite different from these cases are those in which 
a State, though practically dependent on another State, 
has contracted no public engagement which affects her 
theoretical independence. In such cases, third parties 
{i.e. States) are not prima facie bound (by international 
usage and comity) to pay any regard to the fact that the 
inferior State is de facto dependent. They may properly 
treat it as being completely Sovereign. But just as there 
are some cases in which a de facto Sovereign becomes 
morally entitled to obedience from the citizens of a com- 
munity, so there are some extreme cases in which a 
State, while technically independent, is notoriously so 
much de facto under the protection and control of a 
stronger State that it would be improper for third parties 

1 The position of Bosnia, occupied by Austria but not yet formally severed from 
the Ottoman Empire, is somewhat different. It may be compared with that of 
Lothian in the hands of the king of Scots about the end of the tenth century, though 
in that case there may have been a quasi-feudal relation. 



THE NATURE OF SOVEREIGNTY 549 

to ignore the actual relation. England (strictly speak- 
ing) has no legal control over Afghanistan or Nepal, 
and had none over independent Burma down to 1885, 
but Burma was annexed because it toyed with France, 
and any negotiations by a third power with Afghanistan 
or Nepal would be resented by England. Persia may 
possibly sink into a similar position as regards Russia. 

IX. Sovereignty in a Federation. 

One peculiar case remains to be mentioned in which 
theoretical views of the nature of Sovereignty, and a 
certain tendency to confuse the spheres of de iure and 
de facto, produce difficulties. It is the case of communi- 
ties uniting themselves in a Federation, and resigning 
to it a part of their self-government, and either a part 
or the whole of their Sovereignty. There have been 
several such instances, but it will be sufficient to examine 
one. 

When the thirteen semi-independent States — semi- 
independent because they had parted with some of their 
powers by the instrument of confederation of 1776 — that 
lay along the Atlantic coast of North America adopted 
(between 1787 and 1791) the newly drafted Constitu- 
tion of the Union, they neither expressly reserved nor 
expressly disclaimed the right to withdraw from it and 
resume their previous condition. Questions presently 
arose as to the right of a State to treat as null any act 
of the Federal legislature which she deemed to go be- 
yond the powers conferred upon it by the Constitution, 
and ultimately as to her right to withdraw altogether 
from the Union. In the discussions of these points 
much stress was laid on the sovereignty which the seve- 
ral States had (so it was urged) originally possessed, 
which they had never in terms renounced, and which 
the Eleventh Amendment to the Federal Constitution 
had, when it declared that no State could be sued by a 
private person, virtually admitted. 



550 TEE NATURE OF SOVEREIGNTY 

The earlier statesmen, such as Hamilton and Madison, 
held that Sovereignty was by the Constitution divided 
between the Nation, acting through Congress and the 
President, and the States. This was all the more natural, 
because both the National and the State organs of gov- 
ernment were agents of the people, from whom it was ad- 
mitted that all powers had come, and in whom, there- 
fore, ultimate Sovereignty must lie, though whether in 
the people as one whole, or in the several peoples of 
the several States, was another question. But the pub- 
licists of the next generation, who on each side led the 
contest over slavery, refused to acquiesce in any doc- 
trine of division. Like Bodin, Hobbes, Bentham, and 
other Europeans, they proclaimed Sovereignty indivisi- 
ble ; but while the Northern men found it in the Nation 
as a whole, the Southerners, led by Calhoun, insisted 
that it remained in the several States, suspended or tem- 
porarily qualified, but capable of resuming its former 
proportions in each State- whenever that State should 
quit the Union. 

On these questions, which were treated as questions 
of pure law, there was immense debate — acute, learned, 
passionate, and such debate might have gone on for 
ever; for each side had a perfectly arguable case, the 
point being one which the Constitution had (perhaps 
intentionally) evaded. The term Sovereignty acquired 
to the disputants a sort of mystic meaning, and many 
forgot that while the respective rights of the nation and 
the States were de iure the same in i860 as they had been 
in 1 79 1, a new state of things had in fact grown up, 
which the old de iure conception did not suit. Contro- 
versy there would in any case have been, but the contro- 
versy was greatly darkened by the metaphysical cha- 
racter which the use of the abstract term Sovereignty 
imparted to it; and which helped to conceal the mo- 
mentous change which the political conditions of the 
country had undergone. 

The moral of a concrete case like this is the same as 



THE NATURE OF SOVEREIGNTY 551 

that suggested by a study of the errors of the modern 
followers of Hobbes. Hobbes seems to assume that 
his Sovereign de hire will be also Sovereign dc facto. 
Austin cannot admit any one to be a Sovereign who is 
not so both dc hire and dc facto. The lawyers on both 
sides in America grew so hot over their legal contro- 
versy as to forget the incompetence of law to deal with 
certain classes of questions. They ignored history, and 
got too far away from facts. In the sphere of pure law 
political facts need not be regarded, for Law assumes 
that while it remains law its decisions will be accepted. 
But when it is attempted to transfer the principles and 
conclusions of law to the sphere of controversies in 
which not only vast interests, but also violent passions 
are engaged, there is danger that the law may turn out 
not to have been made for the new facts and not to be 
capable of dealing with them, so that efforts to apply it 
to them will not carry the full moral weight which law 
ought to exert. That each party should have a plausible 
legal case makes the risk of conflict greater, because 
men think themselves justified in resorting to force to 
defend their legal case, whereas if they left law out of 
the matter, they might be more willing to consider their 
chances of practical success, and therefore more ready 
to accept a compromise. What is deemed a good case 
dc hire has sometimes proved a temptation to a weak 
State to resist when it had better have agreed with its 
adversary, or a temptation to a strong State to abuse 
its strength, whether by resorting to force when it 
ought to have accepted arbitration, or by expending 
on the annihilation of its opponent an amount of 
blood and wealth out of all proportion to the issues 
involved. 

Knots which the law cannot untie may have to be 
cut by the sword. So it happened in the case of the 
United States. The Supreme Court tried its hand and 
failed. The only legislative authority which could have 
been invoked to settle the dispute by constitutional 



552 THE NATURE OF SOVEREIGNTY 

means was one consisting of a two-thirds majority of 
each House and a three-fourths majority of the States 
(acting either through Conventions or through their 
legislatures), such being the only authority capable of 
amending the Constitution. It was practically impos- 
sible to obtain a majority of three-fourths of the States 
for an amendment dealing with slavery or with State 
sovereignty. The resources of law being exhausted, the 
question of Sovereignty was tried de facto by a war which 
lasted nearly four years, and in which about a million of 
men are supposed to have perished. 



X. Conclusion. 

Upon a review of the long and, on the whole, un- 
profitable controversies that have been waged regarding 
the abstract nature of Sovereignty, one is struck by the 
fact that with the possible exception of the German 
philosophers from Kant to Hegel, these controversies 
have been at bottom political rather than philosophical, 
each theory having been prompted by the wish to get 
a speculative basis for a practical propaganda. It was 
so when the Pope and the Emperor were at war in the 
days after Gregory the Ninth and Boniface the Eighth. 
It was so in the days of Bodin, of Althaus, of Hobbes, 
of Locke, of Rousseau, of De Maistre and. Haller. The 
Romans and the English have contributed less to these 
controversies than most other nations, not only because 
both have been eminently practical as well as eminently 
legal-minded peoples, but because both had the good 
fortune to obtain a clear de hire Sovereign, who was for 
some centuries in Rome, and has been for some cen- 
turies in England (with short transitional periods, in 
both cases, of uncertainty), the undisputed possessor 
not only of de iure, but also of de facto power. Save 
during a few intervals of conflict, all that we English 
have needed to know about Sovereignty is where the 



THE NATURE OF SOVEREIGNTY 553 

law places it 1 . We were beginning to know this as far 
back as the thirteenth century ; and just at the time 
when Bodin's book opens the long disputations of post- 
mediaeval theorists, Sir Thomas Smith set forth the 
legal supremacy of Parliament in words to whose clear- 
ness and amplitude nothing can be added to-day 2 . In 
the seventeenth century a struggle which arose over the 
respective rights of the component parts of this com- 
posite Sovereign was settled de facto by a civil war and 
by a revolution, which negatived any right of separate 
legislation claimed for the Crown and placed the judi- 
ciary in a position of independence. Yet the change 
then made de facto was so far from being fully expressed 
dc lure that whoever should to-day study legal texts only, 
might conclude that the Crown and the House of Lords 
are just as important members of the composite Sove- 
reign as is the House of Commons. Since 1689 de iure 
Sovereignty has coincided with de facto obedience. The 
idea that power de facto naturally goes along with au- 
thority de iure has grown to be almost a part of an Eng- 
lishman's mental constitution, a happy result whereof let 
us all say — Esto perpetna. France and Germany have 
been less fortunate in their history, and consequently 
more prolific in their theories. Yet with the exception 
of a few belated defenders of the old doctrine of ' divine 
right,' Frenchmen are now agreed as to the source of 
all political power, and the Germans, equally agreed 
upon this point, are chiefly occupied in debating 
where, according to the Constitution of their Em- 

1 Indeed the recognition of the Great Council of the nation as the chief power 
in the State is still older: though its exclusive supremacy, i.e. its right to interfere 
with certain branches of the prerogative of one part of it, the Crown, remained 
long contested. 

2 In his Commonwealth of England (published in 1583) : ' All that ever the peo- 
ple of Rome might do, either Centuriatis comitiis or Tributis, the same may be 
done by the Parliament of England, which representeth and hath the whole power 
of the realm, both the head and body. For every Englishman is intended to be 
there present, either in person or by procuration and attorney, of what pre-emi- 
nence, state, dignity, or quality soever he be, from the prince (be he King or 
Queen) to the lowest person of England, and the consent of the Parliament is taken 
to be every man's consent.' See an article by Sir F. Pollock in Harvard Law 
Review for January, 1895, an d his First Book of Jurisprudence, p. 247. 



554 TEE NATURE OF SOVEREIGNTY 

pire, sovereign power is to be deemed in point of 
theory to reside. 

After long wanderings through many fields of specu- 
lation, as well as many a hard-fought fight, all civilized 
nations have come back to the point from which the 
Romans started twenty centuries ago. All hold, as did 
the Romans, that sovereign power comes in the last 
resort from the people, and that whoever exercises it in 
a State, exercises it by delegation from the people. All 
also hold that in the internal affairs of a State, power 
legally sovereign — even if the Constitution subjects it 
to no limitation — ought to be exercised under those 
moral restraints which are expected from the enlight- 
ened opinion of the best citizens, and which earlier 
thinkers recognized under the name of Natural Law. 
The sphere in which no Sovereignty de hire exists, that 
of international relations, where all power is de facto 
only, is also the sphere in which morality has made least 
progress, and in which justice and honour are least 
regarded. 

Note. 

The above article was written, now a good many years 
ago (though it has been revised subsequently), when I 
had not before me some writings on the subject of 
Sovereignty, to which a brief reference ought to be 
made. First among them comes Sir H. Maine. Two 
lectures (in the volume entitled the Early History of 
Institutions) contain an ingenious criticism of the system 
of Bentham and Austin. This criticism would now com- 
mand general assent, yet Maine suddenly stops short of 
the conclusions one would naturally expect. He points 
out so clearly that most of the propositions of Austin 
are either unreal or self-evident, that one is inclined to 
fancy that the praise he nevertheless bestows is due 
more to respect for the destructive work which he holds 
Bentham and Austin to have done than to a belief in 
the substantial value of their doctrines. Mr. F. Harri- 



THE NATURE OF SOVEREIGNTY 555 

son, in an article published in the Fortnightly Review 
some time afterwards, has a very interesting discussion 
of these two lectures, and of the Austinian theory, which 
he also condemns in substance, while handling it ten- 
derly, and holding it to be serviceable as bracing to the 
reader's mind. Mr. D. G. Ritchie (now professor at 
the University of St. Andrew's), in an article on ' The 
Conception of Sovereignty,' in the Annals of the Ameri- 
can Academy of Political and Social Science for January, 
1891, criticizes the Austinian view more stringently, and 
makes many acute remarks, with most of which I find 
myself in agreement. Mr. Henry Sidgwick devotes a 
chapter in his Science of Politics to the topic, and subjects 
the notion that Sovereign Power is absolute and irre- 
sponsible to a penetrating and suggestive analysis. Sir 
F. Pollock discusses the question in his Introduction to the 
Science of Politics, and shows very clearly the unsound- 
ness of the Austinian view. Finally, Mr. C. E. Merriam, 
junior, in his History of the Theory of Sovereignty since 
Rousseau, has presented a full and useful account of the 
chief doctrines put forward on the subject, not stating 
a theory of his own, but adding pertinent criticisms on 
the views which he summarizes. 



XI 

THE LAW OF NATURE 

I. The Idea of Nature as a Ruling Force. 

It would not be possible, within the compass of any- 
thing less than a substantial volume, either to present 
a philosophical analysis of the ideas comprised or implied 
in the term Law of Nature, or to set forth and explain 
the various senses in which that term has been in fact 
employed, and the influence which, in those various 
senses, it has exerted as well upon political theory as 
upon positive law. What I propose to do here is some- 
thing less ambitious and more closely connected with 
the study of the Roman law. It is to sketch in outline 
the process by which the notion of Nature as the source 
of law grew up and passed into philosophy, and from 
philosophy into legal thought ; to show how the notion 
took a comparatively definite shape in the minds of the 
Roman jurists ; to describe the practical use to which 
they put it, and finally to indicate (in the briefest way) 
some of the consequences in modern times due to the 
prominence which the Romans assigned to it. The sub- 
ject has been treated by so many writers, some of them 
well known to all students, that much of it may be 
passed over as familiar. My chief aim will be to show 
that there is far less of a vague and merely abstract 
character in the conception than has sometimes been at- 
tributed to it ; that it had a pretty definite meaning to the 



THE LAW OF NATURE 557 

Roman jurists ; and that they used it in a thoroughly 
practical spirit. 

When man, having attained some mastery over na- 
ture, begins to turn his thoughts to an explanation or 
classification of the phenomena among which he finds 
himself and of which he is a part, two general observa- 
tions present themselves to his mind. The first of these 
is that beneath all the differences which mark off from 
one another the living creatures, both animals and 
plants, wherewith the world is filled, there exist certain 
noticeable similarities in respect of which they may be 
distributed into groups. Individual animals differ from 
one another, but all those of a certain kind or species 
have certain points in common, which constitute their 
character as a kind. So also different kinds have still 
many things in common. All sorts of dogs have certain 
common characteristics ; and though dogs differ from 
wolves, dogs and wolves have many points of resem- 
blance. Now the most general and most remarkable 
of these phenomena in which living creatures are alike 
to one another are the processes of growth through 
which they pass. They are born in a similar way; they 
enter on life small and weak ; they become larger and 
stronger ; they gain teeth at certain periods ; they shed 
their hair or plumage at certain periods ; they at last 
become weaker and die. So plants spring out of the 
earth from seed, shoot up and give off leaves, bloom 
into flowers, form seed, wither down again into the 
earth and die. 

From the habit of noting these phenomena four con- 
ceptions seem to arise. The first is this, that of the 
various characteristics of each creature, those which it 
has in common with other creatures of the same kind 
are the most deeply rooted and permanent. The second 
is that these characteristics exist from the origin of the 
creature, and are its Birth-gift. The third is that one 
group of the common characteristics, and the most im- 
portant of them all, is the group which includes the 



558 THE LAW OF NATURE 

phenomena of growth and decay. And the fourth is 
that in these phenomena of growth there is evidence 
/y of some sort of force working upon and through the 
creatures, something wholly irrespective of, and no- 
wise referable to, their volitions, something stronger 
than they are, and which determines the course of their 
life-processes. 

The second observation is that among human beings 
there is a similar identity of dominant characteristics 
combined with an endless diversity of individuals, a di- 
versity greater than that between different individuals 
of each lower species. In all men, however otherwise 
unlike, there may be noted the same general tendencies, 
the same appetites, passions, emotions. It is these pas- 
sions and emotions that move men's actions, and move 
them upon principles and in ways which are always es- 
sentially the same, despite the contrasts which one man 
presents to another, despite the jars and conflicts in 
each man which spring from the fact that passion may 
urge him in one direction, and interest in another, while 
fear my arrest action altogether. Thus there is formed 

v the conception of a general constitution of man as man, 
over and above all the peculiarities of each individual, 

l a constitution which is not of his own making, but is 
given to him in germ at the outset of his life, and is de- 
veloped with the expansion of his physical and mental 
powers. The most notable marks of this constitution 
of man as man are therefore its Origin at his birth, and 
its unfolding in the process of his Growth. So here also 

V the phenomena of Birth and Growth stand out as the 
notes of that sort of unity which includes all mankind 
and makes Man what he is. 

The language in which I am seeking to present these 
conceptions, though untechnical, is inevitably tinged by 
our modern habits of thought. But we may well believe 
that in substance such conceptions were present to per- 
sons of a reflective turn long before a set of abstract 
terms in which to express them had been invented. 



THE LAW OF NATURE 559 

They had worked themselves into the texture of edu- 
cated minds, and had been conveyed in figurative lan- 
guage by poets before metaphysicians laid hold of the 
matter. 

When metaphysicians appear, that is to say, when 
thought, consciously speculative, begins to attempt sys- 
tematic and comprehensive solutions of the problems 
of the universe which it has begun to realize as pro- 
blems, a new period opens. Looking round upon the 
animated (and now also with a clearer eye upon the in- 
animate) world, philosophers feel the need of finding 
a Cause for the regularity they observe in the working 
of physical forces and in the growth of living creatures 
upon settled and uniform lines. They conclude that 
there must exist a power, either personal — a Deity or 
Deities — or impersonal, a sort of immanent and irre- 
sistible force in things themselves, which has stamped 
its will or tendency upon the movements and processes 
of the material universe. They discover analogies be- 
tween the action of such a Power in the inanimate and 
in the animated world, and between its action on other 
animals and its action on man. Thus they figure it to 
themselves as governing both on somewhat similar prin- 
ciples, and aiming at somewhat similar ends. The name 
they give it is drawn from Birth. It is <&rW, Natura, 
Nature. 

When they apply this method of inquiry or way of 
considering phenomena to Man regarded, not as a mere 
animal, but as a rational being, they find in him com- 
plex faculties and impulses working towards certain 
ends, ends which, despite infinite differences of detail, 
are substantially the same for all men. They note cer- 
tain characteristics and tendencies which they call Nor- 
mal, as being those prescribed by the general rules of 
his moral and physical constitution, and they deem 
every thing varying therefrom to be either a morbid 
aberration, or a fact of quite secondary consequence. 
And as in the wider sphere of animated being, so in that 



560 TEE LAW OF NATURE 

of man taken by himself, they conceive his constitution 
as being the result of a Power which has framed it with 
an intelligent purpose, so harmonizing its various acti- 
vities as to fit them to attain a main and central end. 
Just as in the animal organism all the forces and pro- 
cesses of the body are so united as best to subserve its 
development, so in man regarded as a thinking being 
all the capacities, intellectual and emotional, seem to be 
correlated and guided by a presiding influence, that of 
the Rational Will, in obedience to which all the parts and 
all the impulses find their proper line of action. Thus 
that central and supreme power which in the material 
universe has been called Nature comes to be called in 
man Reason, and conversely, Nature is conceived of as 
necessarily Rational. For as in the universe at large 
the general tendency of things and that which makes 
their harmony is thought of, not merely as a fact, but 
also as a principle or pervading force, not merely as the 
sum of the phenomena, but also as a Power ruling the 
phenomena, so when a similar canon is applied by ana- 
logy to man, this power is found in Reason. And the 
recognition of reason as the harmonizing principle in 
man causes Nature, the force which gives to all things 
their shape and character, to be conceived of as an in- 
telligent force moulding phenomena upon settled lines 
to definite ends. 

Thus the conception of Nature, when it is ready to 
be applied to human society, includes two elements. 
One is that of Uniformity or Normality — the idea that 
the essence and ruling principle in all kinds of objects 
and beings and processes resides in that which they 
have in common, i.e. in the Type which runs through 
them. The other element is ttiaTbf Force and Control — 
the idea that types have been formed and that processes 
work under the guidance of an intelligent Power, a 
power which in the case of the material universe may 
or may not be what is called conscious and personal 
(since as to this philosophers differ), but whose analogue 



THE LAW OF NATURE 561 

in man is conscious and personal. Thus Nature and 
Reason are brought very near : or at any rate, there is 
what may be called a rational quality in Nature. 

This view of nature and her processes as characterized 
by uniformity of action, and this view of such uniformity 
as necessarily due to some directing Force, took shape, 
at a more advanced stage of thought than the stage we 
are now considering, in the much canvassed expression 
Laws of Nature 1 . This term, used to describe the uni- 
formity of sequence in the phenomena of the material 
universe, opens up a line Of reflection with which I am 
not here directly concerned. It is due to an imagined 
analogy between an ordered community, whose mem- 
bers obey rules made for them by a governing authority, 
and the ordered universe, every part of whose machinery 
works with a regularity which suggests rational direc- 
tion by an irresistible Force. As laws are the frame- 
work of a State, so the sequences in the processes of 
Nature are deemed to be the framework of the external 
world. With the (moral) Law of Nature I am about to 
discuss these Laws of Nature — physical or external 
Nature — have of course nothing to do. In the latter, 
Nature, meaning the aggregate of natural phenomena, 
is passive, and obeys laws set to her ; whereas the ex- 
pression ' Law of Nature ' represents her as the power 
which makes and prescribes laws. The ' Laws of Na- 
ture ' are deemed to be imposed upon the world of nature 
by the Power which rules it, or, as the Greeks would 
say, they are laws given to the Kosmos by the De- 
miurgos ; whereas our (moral) ' Law of Nature ' is (as 
will presently appear) the law which Nature herself (or 
God ' the author of Nature ') sets to mankind, her chil- 
dren. Nevertheless in the expression ' Laws of Nature ' 
(nTthe physical sense) the word Nature is sometimes 
used to describe, not only the passive subject which 

1 The term has been extended from material phenomena to those dealt with by 
other sciences, such as economics and philology (e.g. laws of supply and demand, 
' Grimm's law'). 

36 



562 THE LAW OF NATURE 

obeys, but also the active ruler who commands : and this 
double usage has tended to induce confusion. It may 
be partly responsible for the phrase ' a violation of the 
Laws of Nature/ though obviously a Law of Nature can- 
not be violated. All that phrase can mean is that men 
may, ignorantly or knowingly, act in disregard of a cer- 
tain sequence of physical phenomena, receiving the in- 
evitable recompense 1 . By the ancients, the two notions 
were not confounded, and indeed the phrase ' Laws of 
Nature,' in the precise sense it bears to moderns, occurs 
very rarely among them, as one may indeed say that 
the idea in any such sense as ours was by them but 
faintly apprehended 2 . But, distinct as these concep- 
tions are, they have in common the notion that Reason 
as a Power presides over and orders all things. ' And 
Wordsworth Has in a noble passage boldly identified 
with the moral law the Force which directs the majesti- 
cally uniform march of the celestial bodies, when he says 
of Duty— 

' Thou dost preserve the stars from wrong, 
And the most ancient heavens by Thee are fresh and strong.' 

Now let us turn to the phenomena of political society 
and see how the conception works itself out in this field. 

II. Origin of the Conception of Natural Law. 

When the observer applies himself to social pheno- 
mena, he perceives again, as he has perceived in study- 
ing the whole animated creation, two facts equally patent 

1 He who steals, breaks the law and may or may not be discovered or punished : 
he who puts his finger in the fire finds in the pain he suffers the operation of the 
regular sequence of physical phenomena. 

2 There is a passage in a Constitution of the Emperors Theodosius, Arcadius, 
and Honorius (Cod. Theod. Bk. xvi, Tit. x. 12) in which the term ' laws of Nature ' 
is used in a sense which seems to come near the modern one. Forbidding any one 
to sacrifice victims or consult the ' spirantia exta,' the Emperors, after threatening 
punishment as in the case of treason, proceed to say, ' Sufficit ad criminis molem 
naturae ipsius leges velle rescindere, inlicita perscrutari, occulta recludere, inter- 
dicta temptare.' The expression may however mean nothing more than that it is 
impious to tamper with the principles which keep the secrets of nature from men's 
eyes. But in any case it is used in a sense different from that of the moral law 
which the ancients conceived to have been set by nature. 



THE LAW OF NATURE 563 

and equally general — Uniformity and Diversity. In 
human customs, civil and religious, in the rules and 
maxims and polities of tribes and nations, there are 
many things wherein one community differs from an- 
other 1 . But there are also many things wherein all 
agree. All deem some acts, and speaking generally, 
though with many variations, the same kinds of acts, 
to be laudable or pernicious, and award praise or pe- 
nalties accordingly. All recognize somewhat similar 
relations between individuals, or families, or classes, as 
indispensable, and try to adjust and regulate these rela- 
tions upon similar principles. The forms which such 
relations take are no doubt differentiated by the par- 
ticular stage, be it higher or lower, of civilization which 
various peoples have respectively reached. The customs 
of a number of savage tribes, while bearing some re- 
semblance inter se, bear a slighter resemblance to those 
of more advanced nations. Yet even between the sa- 
vage tribe and the semi-civilized or civilized community 
there are marked similarities, and the customs of the 
former are perceived often to contain the germ of what 
has been fully developed among the latter. 

Now the customs and rules wherein tribes or nations 
agree are evidently" the result of dispositions and ten- 
dencies which belong to man as man. In other words, 
they are the expression of what is permanent, essential, 
and characteristic of man, so that if a traveller were to 
come upon some hitherto undiscovered tribe, he might 
expect to find these phenomena present there, just as 
in each child as it grows up there appear the familiar 
qualities and tendencies which belong to the whole 
human species. Hence such phenomena of usage are 
deemed to be normal, and therefore Natural, that is, 
they are due to the Force which has made the human 

1 The famous dictum which Herodotus quotes from Pindar, ' Custom is the king 
of all mortals and immortals,' is quoted to show how usage makes a thing seem 
right to one people and wrong to another, but it was afterwards often taken in the 
sense of an assertion of the supremacy of Law over all things. Cf. Herod, iii. 38, 
and Chrysippus, apud Marcian in Justinian's Digest, i. 3. 2. 



564 TEE LAW OF NATURE 

species what it is. So here in the sphere of human cus- 
toms and institutions we perceive the same contrast 
between that which is variable as being due to circum- 
stance or environment, or what we call chance, and that 
which is constant and uniform as being due to causes 
present, if not everywhere, yet at any rate in the enor- 
mous majority of cases. And the source of the con- 
stancy is to be found here in the political, no less than 
in the ethical and social sphere, in the constitution of 
man as a moral and intellectual being. Nature is there- 
fore, on this view, a ruling power in social and political 
phenomena as well as in those of material growth and of 
moral development. 

The customs and usages of mankind are the early 
forms of what come afterwards to be called Laws — 
seeing that all law begins in custom — as indeed the 
Greeks call both by the same name. Accordingly those 
who began to philosophize about human society gave 
shape to their speculation in theories about Laws. 

Now Laws, the rules and binding customs which men 
observe and by which society is held together, fall into 
two classes. Some are essentially the same, in all, or 
at any rate in most .communities, however they may 
superficially vary in their arrangement or in the techni- 
cal terms they employ. They aim at the same objects, 
and they pursue those objects by methods generally 
similar. Other laws differ in each community. Perhaps 
they pursue objects which are peculiar to that commu- 
nity; perhaps they spring out of some historical acci- 
dent ; perhaps they are experimental ; perhaps they are 
due to the caprice of a ruler. Those which prevail every- 
i where, or at any rate, generally, appear to issue out of 
the mental and moral constitution common to all men. 
They are the result of the principles uniting men as 
social beings, which Nature, personified as a guiding 
power, is deemed to have evolved and prescribed. 
Hence they are called Natural. Being the work of Na- 
ture, they are not only wider in their area, but also of 



THE LAW OF NATURE 565 

earlier origin than any other rules or customs. They are 
essentially anterior in thought as well as in date to the 
laws each community makes for itself, for they belong to 
the human race as a whole. Hence they are also deemed 
to be higher in moral authority than the laws which are 
peculiar to particular communities, for these may be 
enacted to-day and repealed to-morrow, and have force 
only within certain local limits. 

This antithesis of the Customs and Laws which are 
Natural, Permanent, and Universal to those which are 
Artificial, Transitory, and Local, appears in some other 
fields as well as in that purely legal one which we are 
about to consider. In particular, it takes three forms, 
which may be called the Ethical, the Theological, and 
the Political. 

The ethical appears early, and indeed before there is 
any proper science of Ethics. One of the first difficulties 
which men advancing in civilization encounter is the 
conflict between the Law of moral duty ruling in the 
heart and the laws enacted by public authority which 
may be inconsistent with that law. This conflict is the 
subject of the Antigone of Sophocles. We are all familiar 
with the famous lines in which the heroine replies to the 
king, who had accused her of breaking the laws of the 
city, by declaring that those laws were not proclaimed 
by Zeus or by Justice, who dwells with the deities of 
the nether world : — 

ov yap tl fx.OL Zeus rjv 6 Krjpv^as rdoe 
ovS" rj £vvolko<; tu>v kolt<d 6eu>v Aikij- 

Antigone goes on to say that these laws of the gods, 
unwritten and steadfast, live not for to-day or yesterday, 
but for ever, and no one knows whence they spring: — 

ou yap tl vvv ye Kane's, aXX dec 7rore 
£rj ravra, KovSels oJSev i£ otov '<j)dvr]- 

The same poet enforces the same view in a lofty pas- 
sage of another drama, where the moral laws are de- 



566 THE LAW OF NATURE 

scribed as the offspring of the gods, and not of man's 
mortal nature, and which no forgetfulness can ever lap 
in slumber 1 . 

The idea frequently recurs in later literature, and is 
nowhere more impressively stated than in the Apologia 
of Socrates, where the sage speaks of himself as being 
bound to obey the divine will rather than the authori- 
ties of the State, treating this divine will as being di- 
rectly, though internally, revealed to him by ' a divine 
sign,' and being recognized by his own conscience as 
supreme. 

The theological view is vaguely present in early times, 
as for instance in Homer, where certain duties, such as 
that of extending protection and hospitality to suppli- 
ants, are associated with the pleasure and will of Zeus. 
It is most familiar to us from St. Paul, who compares 
and contrasts the Law of Nature, which prescribes right 
action to all men, being instilled into their minds by 
God, with the Positive revealed Law which God has 
given to one particular people only. 

' When the Gentiles which have not the Law, do by 
nature the things contained in the Law, these, having 
not the law, are a law unto themselves ; which show the 
work of the law written in their hearts, their conscience 
also bearing witness, and their thoughts the meanwhile 
accusing or else excusing one another 2 .' 

A similar view, mutatis mutandis, is found in not a few 
of the Greek philosophers. Heraclitus speaks of one 
divine law whence all human laws draw nourishment. 
Socrates, as reported by Xenophon, contrasts the laws 
of the city with the unwritten laws which in every coun- 
try are respected as substantially the same, and says 
that these latter laws were laid down by the Gods for 

1 Soph. Antig. 1. 450 ; Oed. Tyr. 1. 865. 

2 Rom. ii. 14, 15, where ' hearts ' is probably to be taken in the ancient sense, 
which regards the heart and not the brain as the seat of the intellect. Cf. also 
Rom. i. 20, ' For the invisible things of God from the creation of the world are 
clearly seen, being understood by the things that are made, even his eternal 
power and Godhead, so that they are without excuse.' 



THE LAW OF NATURE 567 

mankind 1 , adding that the fact that their infraction 
carries its own penalty with it seems to suggest a divine 
source. Similar passages occur in Plato, who contrasts 
abstract justice and rightful laws with the actual laws 
and customs that prevail in political communities. The 
contrast becomes more definite in Aristotle, whose 
views are specially important, because they profoundly 
influenced the scholastic philosophers of the Middle 
Ages. He divides Justice as it appears in the State into 
that which is Natural and that which is Legal or Con- 
ventional, the former having everywhere the same force, 
while the latter consists of matters which were origi- 
nally indifferent and might have been settled in one 
way or another, but which have become positively settled 
by enactment or custom. Some (he proceeds) think that 
there is no such thing as Natural Justice, because ' just 
things ' are not the same everywhere, whereas physical 
phenomena are everywhere identical. This is true : 
nevertheless, even as the right hand is naturally stronger 
than the left, although there are left-handed men, so 
there is a real difference between rules which are and 
rules which are not natural 2 . Similarly, in a more popu- 
lar treatise, Aristotle divides law into that which is Com- 
mon, being in accordance with Nature and admitted 
among all men, and that which is Peculiar (t'Sios), settled 
by each community for itself 3 . This he treats as a fa- 
miliar conception, to which an advocate pleading a cause 
may appeal when he finds positive law against him. He 
quotes the passage already cited from Sophocles, and 

1 Xen. Memor. iv. 4, 15 sqq. Oeovs olfxai. Toil? vd/uous tovtow; rots av9p<arro<.s fleivai. 
These words are put into the mouth of Hippias, but are part of the argument 
which Socrates conducts. 

2 Eth. Nicom. v. 7. 

3 Rhet. i. 10 and 13 : Aeyw oe vop.ov tov fievlSiov rbv Se koivov, ISiov p.iv tov eKaorois 
oipi.o~p.evov 7rpos auToik, Kai tovtov Toy p.ev aypa(j>ov tov Se yeypaf-f-evov, koivov Se toi/ 
Kara <tivcnv. 'Eart yap, fj.avTevovTai ti ndvTes, <£>uo"ei koivov SiKaioc /cat aoiKov, Kay 
l±r)&efjiia. KOivtavla. Trpbs dAA>jAovs jf fojSe o~uv8r)Ki). 

The lines of Empedocles refer to what it seems strange to call a part of Univer. 

sal Law, the abstention from killing a living thing— to p.rj Kreivew to ep.>pvxoV tovto 

yap ov Ticri fiev Sikcliov Tto-i &' ov StKaiOP, 

dAAa to fnkv rt&vriav voixijxov 8ta t eiipu/u.eSoi'Tos 

aldipos rjvexius TeTaTai Sea T* arrAe'Tov avyijs. {Rhet. i. 13.) 



568 THE LAW OF NATURE 

two lines of Empedocles descanting on Universal Law. 
So Demosthenes refers to the ' common law of all man- 
kind ' which justifies a man in defending his property by 
force *. 

The Stoics took up the idea and worked it out with 
great fullness and force, especially on its ethical side. 
They developed the Aristotelian conception of Nature 
as the guiding principle immanent in the universe. This 
principle is Reason, i.e. the Divine Reason; and Natural 
or Common (=Universal) Law is its expression. So 
also in Man, who is a part of universal nature, Reason 
is the ruling and guiding element, ordering all his facul- 
ties in such wise that when they are rightfully developed 
in action he is obeying his true nature. Thus the for- 
mula ' to live according to nature ' becomes the concise 
statement of what is at once his duty and his happiness. 

Philosophers were however by no means unanimous 
on the subject. The Sceptics and the New Academics 
denied altogether that there was such a thing as the 
' naturally just (^w« Si'kcuov),' pointing to the diversities 
in the positive law of all States, and also to the disagree- 
ments among speculative thinkers. But the Socratic 
or Aristotelian or Stoic view prevailed, having ethical 
or religious considerations to recommend it to those 
who greatly desired to find an ethical basis for life, and, 
if possible, create thereout a religion. 

What I have called the Political form of the idea is to 
be found in the notion, as old as Epicurus, that there is 
a close connexion between the Law of Nature and the 
Common Good, a connexion sometimes represented by 
saying that Natural Justice prescribes what is useful 
for all, sometimes by holding that practical utility is 
the test of whether any law is to be deemed to have 
the authority of Nature behind it 2 . This notion comes 
right down through the ancient world to modern times, 

1 Against Aris/ocrates, 63Q. 

2 Epicurus described Natural Justice as an agreement made for the sake of com- 
mon advantage : to t?j? $v<rea>s SCkcuov eari avjxflokov rov o"V|U.(J>epovT05 eit to inr) jSAa- 
7TT€tv dAAqXovs fATjSe /3Aa;rTeo-0ai (Diog. Laert. x. 150). 



THE LAW OF NATURE 569 

and is really implicit in nearly all that has been written 
on the subject. No one would have repudiated the high 
metaphysical or theological view of the Law of Nature 
more vigorously than Bentham, yet there is an affinity 
between his method of applying utility as against posi- 
tive laws and the methods of several of the ancient philo- 
sophers. And so a German critic is justified when he 
talks of Bentham and Austin as the ' propounders of 
theories of Natural Law.' With the political outcome 
of the idea, however, we are not at this moment con- 
cerned. It is enough to indicate how it has found ex- 
pression in these various fields 1 . 

What I have sought to do in this introductory state- 
ment is to show how the notion of Nature as a force 
governing social as well as physical phenomena grew 
up, and to indicate the wide influence it had attained at 
the time when Rome became mistress of the world. Let 
us now turn to the Romans, and inquire what they meant 
by Natural Law, how the conception shaped itself in 
their hands, and to what practical use they turned it. 

The Roman conception has two sources, the one his- 
torical, the other theoretical. I begin with the historical, 
which is the earlier in date, and incomparably the more 
important 2 . 

1 Since this Essay was in type I have seen the article On the History of the Law 
of Nature, by Sir F. Pollock, published in the Journal ot the Society of Compara- 
tive Legislation for Dec. 1900, and simultaneously in the Columbia Law Review, 
Jan. igoi ; and am happy to find myself in substantial agreement with him upon all 
points of importance connected with the subject. Some branches of it, especially 
the Greek and mediaeval parts of the history of the idea, are treated of more fully 
by him, and the whole article is full of interest. Judicious remarks and useful quo- 
tations will also be found in Prof. D. G. Ritchie's Natural Rights (published in 
1895), Part i ; and in Dr. Holland's Elements of Jurisprudence, pp. 30-38 of ninth 
edition. 

2 A very minute and careful collection of the authorities regarding /us Naturae 
and Ius Gentium may be found in the book of Dr. Moriz Voigt, Die Lehre vom 
Jus Naturale, aequum et bonum und Jus Gentium der Romer. I do not find my- 
self always able to agree with his views, but they are stated with painstaking 
ability, and the citations have often aided me. 



570 THE LAW OF NATURE 

III. The Roman ' Law of the Nations.' 

Long before the time when the city on the Tiber had 
become the undisputed mistress of Italy, Rome began 
to be the resort of many strangers who did not possess 
even that qualified kind of citizenship (summed up in 
the words connubium and commercium) which included 
the capacity for forming family ties, and for entering 
into business relations according to Roman rules. These 
strangers or aliens (peregrini) had originally no civil 
rights, public or private, but they nevertheless dealt with 
Roman citizens, sold to them, bought from them, lent 
and borrowed money, entered into partnership, acted as 
factors or supercargoes, made wills, gave or received 
legacies. Similarly, some of them contracted marriages 
with Roman citizens, and became connected by various 
family bonds. It was necessary for the Roman courts 
to deal with the relations, and especially of course with 
the business relations, which were thus created. Yet 
the courts could not apply the rules of pure Roman law 
to them, because it was a precondition to the doing 
of certain formal acts under that law, to the holding 
certain legal relations, and (in some kinds of suits) to the 
use of the appropriate forms of procedure, that the doer 
or holder should be a full citizen. Accordingly the 
Roman courts, when they had to administer justice be- 
tween these strangers, or between them and citizens, 
were obliged to find certain principles and rules which 
could guide their action in the same way as the princi- 
ples and rules of the pure Roman law guided them when 
dealing with citizens. 

The phenomenon of having a different law for stran- 
gers and for citizens is one which at first sight seems 
strange to us moderns, because in modern civilized coun- 
tries ordinary private law is administered with little re- 
gard to the nationality or allegiance of the persons con- 
cerned, the law of the country being regularly applied, 
except when it can be shown that the domicil of a party 



THE LAW OF NATURE 571 

to a suit, or the fact that a contract was made with 
reference to another law than that of the court exercis- 
ing jurisdiction, or the situation of the property dealt 
with, requires the application of some other (i.e. foreign) 
law 1 . But in the ancient world foreigners everywhere 
stood on a different level from citizens, as regards not 
only political, but also private civil rights ; the sense of 
citizenship being much more intense in small commu- 
nities, and there being no such bond of fellowship as 
the Christian Church subsequently formed for the Mid- 
dle Ages and the modern world 2 . Indeed it was the 
Roman Empire and the Church taken together which 
first created the idea of a law common to all subjects 
and (later) to all Christians, a law embodying rights en- 
forceable in the courts of every civilized country. 

How then did the Roman magistrates find the law 
which they needed for the above-mentioned purpose? 
As they could not apply their own law, so neither could 
they select the law of any one of the States which sur- 
rounded Rome, because the persons between whom jus- 
tice had to be done came from a great number of States 
and tribes, each of which had a law of its own. Being 
unable therefore to borrow, they were forced to create. 
They would appear to have created — I say ' appear,' 
because our knowledge of the matter is far from com- 
plete — by taking those general principles of justice, fair 
dealing, and common sense, which they found recog- 
nized by other peoples as well as their own, and by giving 
effect to those mercantile and other similar usages which 
they found prevailing among the strangers resident at 
Rome. Thus by degrees they built up a body of rules 
and a system of legal procedure which, while it resem- 

1 In the days after the fall of the Roman Empire, however, different laws were 
applied to different sets of persons in the extra-European dominions of European 
States, e.g. the Roman law to the clergy and the provincial subjects, the barbarian 
law to barbarians. And the same thing- happens now in countries where Euro- 
peans and Musulmans or semi-civilized tribes dwell side by side. 

2 Among some of the Greek cities, however, before they were engulfed in the 
Roman dominion, there had grown up a practice by which friendly commonwealths 
reciprocally extended certain civil rights to one another's citizens. 



572 THE LAW OF NATURE 

bled their own system in many of its general features, 
was less technical and more consonant to the practical 
convenience and general understanding of mankind. 
They called it the Law of the Nations or of Mankind 
(ius gentium) 1 , not in the sense of law valid as between 
nations (what we should call International Law 2 ), but 
as being the common or general law, just as the expres- 
sion nusquam gentium means ' nowhere at all 3 .' It is 
the law which nations in general used and could compre- 
hend. Each of these nations, or communities — Tuscans, 
Umbrians, Greek cities of Southern Italy, Carthaginians, 
and so forth — had a law of its own, with certain peculi- 
arities which no other people could be expected to know 
or perhaps to relish. But the principles of good faith 
and equity underlay, and were recognized in, the laws of 
all, so that this Law of the Nations represented the com- 
mon element which all shared, and by which all might 
be content to be judged. Thus it comes near to what 
the Greeks had called the ' common law of mankind.' 
Yet it is not to be identified with that law, for it is con- 
ceived of as something concrete, resting entirely on the 
fact that men observe it, and possibly not always in ac- 
cordance with abstract justice. 

We need not here examine the question, which indeed 
our data do not enable us to answer, by what practical 
methods or processes the Roman Courts proceeded to 
frame this Law of the Nations ; whether, and if so how 

1 The word gens, though we commonly translate it l nation,' was originally used 
to denote a clan or sept (e.g. Fabii, Julii), and always retained this as one of its 
meanings. Can this original sense have had anything to do with the earliest legal 
meaning of the term ? One is tempted to conjecture that there might have been a 
sort of common law of the gentes, recognized in contradistinction to the law of each 
gens, but when we find the term in the time of Cicero, it has the sense mentioned in 
the text, and I do not know of any facts supporting such a conjecture. So far back 
as one can go ius Quirilium is the term applied to the law of the city as a whole. 

2 Though ius gentium is sometimes the term used to describe those usages which 
as being common to all men were in fact observed by States in their relation to one 
another ; cf. Sallust, Jug. c. 35 ; Livy, i. 14 ; v. 36. Obviously the rules which all 
nations recognize would be those which they would apply in their dealings with 
one another. 

3 See the article Ius Gentium in Professor H. Nettleship's Contributions to Latin 
Lexicography. He thinks the term had become a popular one before the time of 
Cicero. 



THE LAW OF NATURE 573 

far, they actually did inquire into the customs and rules 
of the peoples with whom they came most in contact; 
or whether they were content to proceed upon the gene- 
ral principles of justice and utility; or whether they 
followed in the main their own law, stripping off its 
technicalities while preserving its substance. All three 
methods might be more or less used. But probably 
they were chiefly influenced by the customs which they 
found actually recognized by traders from various na- 
tionalities resident at Rome. Before the Courts stepped 
in to administer justice among the strangers, commer- 
cial practice had doubtless created a body of customs 
which were in fact observed, though no express and 
binding sanction had yet been given to them. One may 
illustrate this by recalling the fact that much of our own 
mercantile law is based upon customs of merchants 
which English Courts, seeing them recognized by honest 
traders as actually binding, and seeing that contracts 
were made with regard to them, and that they were in 
fact understood as being conditions implied in such con- 
tracts, proceeded to enforce, treating them as being 
really part of the contract. This process of turning cus- 
tom into law went on actively so late as the time of Lord 
Mansfield, of whom it has been said that he and the 
juries at the Guildhall in the City of London created no 
small part of English commercial law. So the English 
officials, when they began to administer justice among 
traders in India, found a number of customs actually 
observed, and built up a body of law out of these rules, 
plus their own notions of what was fair and just, together 
with such recollections as they had of the principles of 
English law x . 

What is certain is that the Romans did not formally 
enact any parts of this new Law of the Nations. It was 
built up solely by the practice of the courts and the 
action of the jurists ; and it took definite shape only in 

1 See Essay II, pp. 97-101. 



574 THE LAW OF NATURE 

the edicts of the Praetors and Aediles *. By the end of 
""the Republic it had grown to considerable dimensions, 
and long before that date had begun to exercise a potent 
influence upon the development of the law which be- 
longed to citizens only, and which was therefore called 
ius civile. Such dicta of the professional jurists regard- 
ing ius gentium as we possess belong to a later time, and 
the earliest authority who mentions it is Cicero. He 
says that ' our ancestors distinguished the law of citi- 
zens from the law of the nations, that which is proper 
to citizens not being therewith part of the law of the 
nations, whereas that which belongs to the law of the 
nations ought to belong to the law of citizens also 2 ' ; 
and in several other passages he contrasts the two kinds 
of law, observing in one place that the ius gentium, like 
part of the ius civile, is unwritten, i.e. not included in 
statutory enactments 3 . He talks of it as a body of posi- 
tive law resting on custom and agreement, but unfor- 
tunately does not tell us how that particular part of it 
which the Roman Courts administered had been formed. 
We may, however, safely conclude that the procedure 
of the magistrates in granting actions and allowing 
defences in certain cases had been the chief agency 
whereby it received a definite form, and that the mate- 
rials were (as already observed) chiefly furnished by the 
habits of dealing which had arisen among the strangers 
resident at Rome in their intercourse with Romans and 
with one another, in their bargains and transfers of 
property, in the forms and conditions relating to loan 
and pledge and selling and hiring, such conditions being 
usually embodied in documents to which a specific legal 

1 See as to this Essay XIV, p. 707. Thus Praetor-made law, ius honorarium, 
very largely coincides with and covers the field of ius gentium, but the two are by 
no means identical. The actio Publiciana, for instance, belonged to the former, 
but not (except so far as natural equity suggested it) to the latter. So in Digest xvi. 
3, 31 ' merum ius gentium ' is opposed to ' praecepta civilia et praetoria.' 

2 ' Itaque maiores aliud ius gentium, aliud ius civile esse voluerunt. Quod ci- 
vile, non idem continuo gentium, quod autem gentium, idem civile esse debet ' (De 
Off. iii. 17. 69). 

3 Orat. Partit. xxxvii. 130. 



THE LAW OF NATURE 575 

effect would be attached. Broadly speaking, the basis 
or source of the underlying principles of ius gentium 
would as respects commercial matters be found in good 
faith and common sense, and as respects family matters 
and inheritance in natural affection. 

This sketch, slight as it is, may suffice to indicate how 
the Romans were brought to deal in a concrete and 
practical way with the phenomenon we were consider- 
ing on its abstract side, viz. the distinction between 
customs and laws which are substantially common to 
all (more or less civilized) communities, and those which 
are peculiar to one or a few only. That which struck a 
Greek thinker who reflected on the state of the Medi- 
terranean world in the fifth or fourth century B.C., viz. 
virtual uniformity in some customs and laws, endless 
diversity in others, struck every Roman magistrate who 
had to preside in urban or provincial courts during the 
third and second centuries B.C. The Greek formed a 
philosophic theory : the Roman, being a ruler, was forced 
to construct a working system. But the Greek had 
little occasion to apply his theory; and the Roman did 
not think of basing his system on any theory at all. His 
ius gentium grew up and spread out and bore fruit, and 
was already influencing both the old law of Rome her- 
self and the administration of Roman courts in the pro- 
vinces before (so far as we know) anybody had thought 
of connecting the Law of Nature with the Law of the 
Nations. 

IV. Connexion of the Law of Nature with the 
Law of the Nations. 

This connexion belongs to the last days of the Roman 
Republic, and was probably due to that increased in- 
terest in philosophy and ethics which owed so much to 
the literary activity of Cicero, who was not only a states- 
man and an orator, but an ardent student of philosophy 
and a voluminous writer on philosophical, especially 



576 THE LAW OF NATURE 

ethical, topics. It is the fashion now to depreciate Mar- 
cus Tullius. He was probably also depreciated in his 
own time. The learned black-letter lawyers, who had 
been his fellow pupils under Q. Mucius the Augur, 
doubtless said of him, as Sugden is reported to have said 
of Lord Chancellor Brougham, that if only he knew a 
little about law he would know something about every- 
thing. And the Greek philosophers with whom he loved 
to discourse probably hinted to one another, when their 
eloquent patron was not by, that, after all, no Roman 
would ever be a thinker. We can admit a measure of 
truth in both criticisms. But Wisdom is justified of all 
her children, and Cicero has outlived both the lawyers 
and the philosophers of his own time. His eager and 
capacious intellect, playing round political and legal, as 
well as metaphysical and moral inquiries, and using a 
brilliant style to popularize and render attractive all 
that he touched, gave a currency to the ideas of Greek 
speculators which made them tell more widely than ever 
before upon the Roman mind, and all the more so when, 
in the generation that succeeded his own, the career of 
political distinction through forensic and senatorial and 
platform oratory began to be closed by the growth of 
an absolute monarchy. Indeed Cicero's own philosophi- 
cal treatises were due to that retirement from active 
political life which the ascendency of Julius Caesar 
caused ; and his composition of them was prompted (as 
he tells us) by a wish to stimulate the flagging public 
spirit of his younger contemporaries. 

Now the theory of the Law of Nature, suggested by 
Heraclitus and Socrates, preached more actively by 
Zeno and Chrysippus, had been much discussed and 
widely diffused during the centuries between Aristotle 
and Cicero. Its acceptance and influence were aided 
by the changes which had been going on in the world, 
the Hellenization of Asia, the admixture of religions 
and mythologies, and that more easy and frequent in- 
tercourse between the Western and Eastern Mediter- 



THE LAW OF NATURE 577 

ranean countries which enabled the peoples to know 
more of one another. The doctrine, though not con- 
fined to the Stoics, received among them special pro- 
minence, and became a corner-stone of their ethical 
teaching. Moral duty was by them practically deduced 
from, and identified with, the Law of Nature. Cicero, 
though he would not have described himself as a Stoic, 
substantially adopts their language on this point, and 
lays great stress on Nature as the source of the highest 
law and morality, invoking the doctrine in his speeches 
as well as expounding it in treatises 1 . With him the 
Law of Nature springs from God, is inborn in men, is 
older than all the ages, is everywhere the same, can- 
not be in any wise altered or repealed. It is the basis 
of all morality. It ought to prescribe the provisions of 
positive law far more extensively than it in fact does, 
and to give that law a higher and more truly moral 
character. We might expect Cicero to go on, if not to 
identify it with the ius gentium which he contrasts with 
the peculiar law of Rome, at any rate to describe it as 
the source and parent of ins gentium. This, however, he 
does not actually do, though more than once he comes 
near it 2 . Ins gentium is to him a part of positive law, 
though much wider in its range than ius civile, whereas 
the Law of Nature is altogether an ethereal thing, eter- 
nal, unchangeable, needing no human authority to sup- 
port it, in fact St. Paul's ' law written on the hearts of 
men.' 

Although Cicero was the most copious and eloquent 
writer among those Romans who pursued the study 
of philosophy in his generation, he did not by any means 

1 See especially the fragment of his De Republica preserved by Lactantius, Div. 
Inst. vi. 8, 7. 

2 Many writers have, however, thought that Cicero did mean to identify ius 
gentium and ius naturae, basing themselves on De Off. iii. 17, 69, and iii. 5, 23. 
Cf. also the words ' lege . . . naturae, communi iure gentium ' in De Harusp. Re- 
spons. 15, 32, an^ ' consensio omnium gentium lex naturae putanda est ' in Tusc. 
Disp. i. 13. The point is argued, at great length, by Voigt {op. cit. vol. i. pp. 65- 
75, 213-219, and Appendix II). Nor does Cicero quite precisely define the relation 
of his Laws of Nature to positive law. He writes rather as a moralist than as a 
jurist. 

37 



578 THE LAW OF NATURE 

stand alone. Most of the prominent statesmen, orators, 
and authors occupied themselves with ethical specula- 
tion ; and this was no less true of the leading spirits of 
the following century. The great jurists of the Au- 
gustan and post-Augustan age, such as Antistius Labeo, 
Massurius Sabinus, and Cassius, refer to the Law of 
Nature as a source of law already familiar. Two influ- 
ences were indeed at work, which gave to philosophy a 
greater prominence than it had perhaps ever enjoyed 
before or has ever enjoyed since. Faith in the old re- 
ligions having practically vanished from the educated 
classes, some substitute was needed, and the more pure 
and earnest minds sought this in philosophy. The 
career of political life having been, in its old free form, 
closed by the vesting of all real power in the hands of 
one person, who presently became recognized as le- 
gally sovereign, men were more and more led to seek 
solace, or enjoyment, or at any rate occupation, in the 
study of metaphysics and ethics. Jurisprudence con- 
tinued to be pursued by many of the most powerful and 
cultivated intellects ; and philosophy was not only a 
main part of education which such men received, but 
claimed much of their time and thought. They were so 
permeated by it, that both its methods and its principles 
must needs influence their treatment of legal matters, 
whether as writers, or as magistrates, or as advisers of 
the monarch and framers of legislation. The idea of the 
Law of Nature as the source of morality and the true 
foundation of all civil laws, the idea of all mankind as 
forming one natural community of which all are citizens, 
and in which all are equal in the eyes of Nature — 
this idea had come to pervade the minds of thinking 
men, whether or no they were professed adherents of 
any school of philosophy. It was taken as a generally 
accepted truth, and was therefore assumed and referred 
to without adducing arguments on its behalf, far re- 
moved from the actual facts of the world as was the 
ideal to which it pointed. 



THE LAW OF NATURE 579 

The growth and acceptance of the doctrine may be 
compared with the process whereby certain notions, 
now pretty generally received in nearly all civilized coun- 
tries, have made their way during the last two cen- 
turies. Such are the doctrines known in America as 
those of the Declaration of Independence, and in France 
as the principles of 1789. Such is the doctrine of the 
freedom of the individual conscience, and the consequent 
wrongfulness of religious persecution. These doctrines 
began to be asserted (especially in England) during the 
seventeenth century. They were diffused slowly, and 
constantly denied by the powers that be, but they have 
been now virtually accepted in principle by all thinking 
men. Few think it necessary to argue on their behalf; 
yet they are very far from having secured their full effect, 
for in some countries the rulers refuse to apply them, 
and in almost all countries they are admitted to be sub- 
ject to exceptions which render their full application 
difficult. They represent rather an ideal towards which 
society is held to be moving, than a positive basis on 
which existing society is built. 

Although, however, the Romans of the earlier im- 
perial period saw that their conception of the Law of 
Nature was a long way from being realizable in such a 
world as was then present, they also discovered in the 
changes that had passed upon that world much which 
recommended the conception as true and sound. The 
extension of Roman dominion was completing the pro- 
cess which the conquests of Alexander the Great had 
begun. Eastern religions invaded the West ; Greek and 
Latin became world-languages ; commerce brought all 
the Mediterranean peoples together; nations and na- 
tionalities were blent and ultimately fused in a com- 
mon subjection to Rome. The provincial rose as the 
old Roman citizen sank, so that equality came nearer 
and nearer. The old mutually exclusive systems of citi- 
zenship and law seemed obsolete ; and therewith the 
traditional reverence for the ancient legal institutions 



580 THE LAW OF NATURE 

of the Quirites passed away, even from the conserva- 
tive minds of lawyers 1 . In particular the idea of a 
community of all mankind, as opposed to the small civic 
communities of earlier days, began to approach a reali- 
zation in the great empire which had gathered all civi- 
lized men under its wings, had secured for them peace, 
order, and a just administration of the laws, and had 
admitted every one, whatever his race, tongue, or birth- 
place, to a career of honourable ambition in civil and 
military office, a career whose possibilities included even 
the imperial dignity itself. 

For this all-embracing commonwealth, this societas 
omnium hominum, of which the Greek philosophers and 
Cicero had written, and which had taken concrete shape 
in the Roman Empire, there would seem to be needed 
some common law, since the ideas of law and state were 
correlative 2 , according to the dictum, Quid est civitas 
nisi iuris societas 3 ? Now there was a law which could 
actually be applied to all Roman subjects, non-citizens 
and citizens alike, and which was supposed to be the law 
common to all men as being the law which all nations 
used, and which had therefore been applied by Roman 
Courts where persons outside the pale of Roman law 
proper were concerned. Just as the law of Rome drew 
its authority from the will of the people, whether signi- 
fied expressly by enactments or tacitly by usage and 
consent, so this general law rested on custom, on the 
understanding and will of collective mankind, evidenced 
by their practice ; and its source was therefore one which 
met and satisfied the view that the community are the 
source of law. Now this common law of mankind was 



1 There does not, however, seem to be any ground for the notion that the Roman 
lawyers ever despised ius gentium as only fit for inferior people ; that they deemed 
it ' an ignoble appendage to their civil law,' as Sir H. Maine says. That this was 
ever their feeling is mere surmise. No traces of such a view appear in our 
authorities. 

2 Not, of course, in the Austinian sense that law is only what the State has ex- 
pressly enacted, for the ancients always dwell upon custom (mores maiorum, con- 
suetudo inveterata, consensus utentium) as a chief source of law. 

3 Cic. De Rep. i. 52. 49. 



TEE LAW OF NATURE 581 

the ius gentium. Though in point of fact gathered and 
moulded by Roman Courts, it was deemed to repre- 
sent the essence of the law which prevailed among vari- 
ous neighbour peoples, and of the usages which common 
sense and the needs of commerce had sanctioned among 
men in general, wherever dwelling. It was conceived 
of as being common to all mankind (ius commune om- 
nium Aominum 1 ) (omni humano generi commune %s ), or 
as the law which exists among all peoples {ius quod 
apud omnes populos peraeque custoditur 3 ) (ius quo 
gentes humanae utuntur*). It was applicable to per- 
sons who had no rights of citizens in any city (dTrdAcSes) 5 . 
It was coeval with the human race itself (cum ipso humano 
genere proditum 6 ). It was in all these respects contrasted 
with ius civile, just as the Law of Nature (ius naturale) 
was similarly contrasted. Finally it was the law which 
natural reason had created (ius quod naturalis ratio con- 
stituit 7 ). When this point had been reached, it became 
practically identical with the Law of Nature, and the 
identity, implicitly suggested in Cicero's remark that the 
agreement of all nations must be deemed a law of na- 
ture 8 was formally enounced by jurists at least as early 
as the time of Hadrian. In Justinian's Institutes the 
identification is complete. 

A third conception, to which reference has not yet 
been made, contributed to this fusion, viz. the conception 
of Equity (aequum et bonum, aequitas). Equity means to 
the Romans fairness, right feeling, the regard for sub- 
stantial as opposed to formal and technical justice, the 
kind of conduct which would approve itself to a man of 

1 Gaius, Inst. i. i ; Dig. i. i, 9. 

2 In Inst. lust. i. 2, 2, taken from Marcian. 

3 Gaius, Inst. i. 1. 

4 Ulpian in Dig. i. 1, 1, 4. 

5 Marcian in Dig. xlviii. 19, 17. 
8 Gaius in Dig. xli, 1, x,pr. 

r Gaius, Inst. i. 1. The formal express and specific identification is to be found 
only in some jurists, and is most explicitly stated by Gaius. There does not, how- 
ever, seem to be sufficient ground for thinking (as Voigt, op. cit., argues) that there 
was any real difference of opinion among them. Their language on these points 
is seldom precise. 

8 See p. 577, note 2, supra. 



\ 



582 THE LAW OF NATURE 

honour and conscience. It completes the idea of the 
higher kind of law by adding a third element, or rather 
a third source, that which springs from the breast of man 
and represents his natural sense of justice, his sympa- 
thetic good feeling towards his fellow men. Thus we 
may say that seen from the point of view of theology or 
metaphysics, this universal or Natural law is prescribed 
by God or by Nature. Seen from that of history and 
political science, it issues from the will of mankind, who, 
organized as nations, have created it by custom and 
practice. Seen from the side of ethics and psychology, 
it represents the tendencies and habits of the typical 
good man, who desires to treat his neighbour as he 
would wish to be himself treated. The coincidence of 
these three streams of origin or lines of thought enlarges 
the conception, defines it, gives to it, taken as a whole, a 
harmonious symmetry. Thus it becomes complete on 
its theoretical as well as oh its practical side. 

In the Roman jurists of the best age we note three 
qualities not always united in lawyers — a love for theo- 
retical perfection, an attachment to ancient usage, and 
a sense of practical convenience. The first delivered 
them from the tyranny of the second, the second mode- 
rated their devotion to the first, the third found a middle 
term between the other two and guided them in the ad- 
justment of principle to fact. The blending of the notion 
of Natural Law, as the ethical standard of conduct and 
the ideal of good legislation, with the notion of the law 
formed by the usages and approved by the common 
sense of all nations as embodying what was practically 
useful and convenient, satisfied both the philosophical 
and the historical instincts of the jurist. Had there been 
a similar combination of ideas and habits in the English 
jurists of the seventeenth and eighteenth centuries, our 
legal progress would have been more rapid, and, if the 
phrase be permissible, more ordered and rhythmical. 



THE LAW OF NATURE 583 

V. Relation of Natural Law to General 
Customary Law. 

There are, however, misconceptions against which we 
must be on our guard in grasping and appraising this 
identification of Natural Law with the sum of that which 
is common in the customs of mankind. 

In the first place it was not a complete identification. 
There were some points in which Natural Law and the 
Law of the Nations differed, and one of these was of 
profound importance. That point was Slavery. It was 
universal in the ancient world, and so must be deemed 
a part of ius gentium. But philosophers had pointed out 
(even before the time of Cicero) that it was contrary to 
nature 1 . Here, therefore, is a large department in 
which the sanction of Nature could not be claimed for 
this part of ius gentium any more than it could for much 
of ius civile. Slavery, says one jurist, is an institution of 
the Law of the Nations, whereby one man is subjected to 
the ownership of another against Nature 2 . And where 
we find the rigour of the old law of Slavery modified, 
this is always said to be in deference to nature and hu- 
manity, not to anything in ius gentium. And the Roman 
jurists indeed go so far as to hold that by Nature all 
men are equal 3 . So on the other side there were some 
provisions of statute law (for instance, in the rules re- 
garding inheritance) which, though they had been sug- 
gested by principles ascribable to the Law of Nature, 
were, as resting on Roman statutes, referred to the cate- 
gory of ius civile rather than to that of ius gentium. 

Secondly, the Romans did not, when they referred 
any particular institution to the ius gentium, necessarily 
intend to convey that it was universally prevalent. The 
origin of hypotheca for instance (mortgage of immova- 

1 Ulpian in Dig. 1. 17, 32. 

2 Dig. i. s, 4, § 1 : cf. Inst. i. 5 ; Gaius, Inst. i. 52. 

3 The doctrine that slavery is against nature was older than Aristotle, who does 
not accept it. The orator Alcidamas (a contemporary of Socrates) said e\ev9cpov<; 
aifirJKe 7ravTas 0e<V ovSeVa 8ov\ov ij ipvcns TrenoirjKiv. See W. L. Newman's Politics 
0/ Aristotle, Introduction, p. 141. 



584 THE LAW OF NATURE 

bles) and of the syngraphe (written acknowledgement of 
a debt) was due to Greek usage, and by no means general 
over the world. These legal institutions, however, since 
they did not belong to Roman law proper, were held to 
be part of ius gentium. 

Thirdly, there is no ground for thinking that when 
the Roman jurists said that Natural Reason was the 
source of ius gentium, they had altered their historical 
view of the origin and character of the latter body of 
law, or fancied that there ever had been an age, how- 
ever remote, however simple and primitive, during which 
its precepts, in any concrete shape they knew or could 
imagine, had actually prevailed among mankind. The 
expression ' lost Code of Nature,' which a distinguished 
writer has used 1 , is therefore an unfortunate one, for 
it seems to imply that the Romans were under the belief 
that there had once been a so-called State of Nature, in 
which the ius gentium served as law. So far were they 
from such a delusion that they ascribe to ius gentium 
war, captivity, slavery, and all the consequences of these 
facts, while in the golden age, the Saturnia regna of the 
poets, all men were free 2 and war was unknown — 

' Necdum etiam audierant inflari classica, necdum 
Impositos duris crepitare incudibus enses 3 .' 

Their identification of the Law of Nature, which they 
accepted as a doctrine of philosophy, with the Law of 
Nations, which their courts had been administering and 
their text-writers expounding for two or three centuries 
at least, affected neither the essentially ideal character 
of the former nor the distinctly practical character of 

1 Sir H. Maine in Ancient Law. It will be seen that the view which he takes of 
ius gentium and ius naturae seems to me to be in several points at variance with 
the facts ; but I need hardly say that no one feels more strongly than I do the value 
of the stimulus to English study and thought on these subjects which his fertile 
mind and brilliant treatment have given, and for which all subsequent writers 
must be grateful. 

2 Cf. Macrob. Saturn, i. 7 ; and Justin. Hist, xliii. 1, who says that not only 
slavery but also private property was unknown under the reign of Saturn, so great 
was his justice ! 

3 Virg. Georg. ii. 539. 



THE LAW OF NATURE 585 

the latter. Had it done either of these things it might 
have worked for evil. But in point of fact it did not 
palpably quicken the pace of legal reform, nor did it 
induce any theoretic vagueness in their views of law, or 
suggest crochets or subtleties which could impede the 
manipulation of positive rules. The jurists use the two 
terms as practically synonymous, though generally em- 
ploying ins naturae or naturalis ratio when they wish to 
lay stress on the motive or ground of a rule, ius gentium 
when they are thinking of it in its practical application. 
To borrow the language of logic, the connotation of the 
two terms is different, while their denotation (save as 
aforesaid, and especially save as regards slavery) is the 
same. 

Thus happily united by a synthesis which satisfied at 
once the practical good sense and the philosophic temper 
of the Roman jurists, the two conceptions of the Law of 
Nature and the Common Law of Mankind went on their 
way rejoicing. But after a while an event befell which 
deprived the latter expression of its ancient concrete 
basis, and rendered it, except for historical purposes, 
and as a description of a body of rules of a particular 
historical origin, virtually obsolete. This was the ex- 
tension of Roman citizenship to all the subjects of the 
Roman Empire by an edict of the Emperor Antoninus 
Caracalla between 212 and 217 a.d., an act which de- 
stroyed the distinction between ius gentium and ius civile 
so far as the persons governed by each were concerned, 
for there were thereafter comparatively few peregrini 
(non-citizen subjects), since ius civile was now enjoyed 
by all the dwellers in the Roman world 1 . This may be 

1 There remained as aliens (1) the class called dediticii, the lowest species of 
freedmen,(2) persons deprived of citizenship as a punishment for crime, (3) foreign- 
ers, i.e. subjects of some other State temporarily resident in the Empire, and proba- 
bly also persons imperfectly manumitted subsequently to the Edict, together (pos- 
sibly) with the inhabitants of territories added to the Empire subsequently to the 
Edict. See Muirhead (Historical Introduction to the Private Law of Rome, 2nd edi- 
tion, by Professor Goudy, p. 319), and, for a fuller discussion of the topic, Mitteis, 
Reichsrecht und Volksrecht in den ostlichen Provinzen des Rbmischen Kaiserreichs, 
chap. vi. 



586 THE LAW OF NATURE 

one of the reasons why, in the constitutions of the Em- 
perors collected in the Codes of Theodosius the Second 
(a.d. 438) and of Justinian (a.d. 534), constitutions the 
earliest of which date from Hadrian, the term ins 
gentium never occurs. It is frequent in the Institutes of 
Justinian (a.d. 533), but that book (based on the Institutes 
of Gaius) is, although a statute, yet primarily a manual 
for learners who were going to use the extracts from 
old jurists contained in the Digest, so that the term could 
not be omitted. When the later Emperors wish to as- 
sign a ground for some enactment which they are issu- 
ing, they commonly speak of Nature, or Natural Reason, 
or Humanity, or Equity, using these words almost indis- 
criminately to describe the same thing. 

VI. Meaning attached by the Roman Jurists 
to Nature. 

Now let us inquire a little more closely what the 
Roman jurists and legislators meant to convey when 
they talk of Nature, or the Law of Nature, and what 
are the positive rules of law which they ascribe to 
this source, or established in obedience to this prin- 
ciple. 

The following senses in which they use the word 
Nature may be enumerated, though these cannot be 
sharply distinguished, for some run into others. 

1. The character and quality of an object, or of a 
living creature, or of a legal act or conception (e.g. 
natura venenorum, natura hominum, natura apium 
(fera est), natura contractus, natura dotis). 

2. The physical system of the Universe irerum natura), 
and the character which it bears. Thus it is said that 
Nature has taken some objects (e.g. the sea and air) out 
of the possibility of private ownership. 

3. The physical ground of certain relations among 
men, as for instance of blood relationship (cognationem 
natura constituit). So the rule that children born out of 



THE LAW OF NATURE 587 

wedlock follow the condition of the mother is ascribed 
to Nature (liberi naturales) ; so the rule that persons 
under puberty should have a guardian. 

4. .Reason, whether in the sense of logic and philo- 
sophical principle on the one hand, or as meaning what 
we should call ' common sense ' on the other, is often 
denoted by the term Nature. Nature (it is said) pre- 
scribes that no one should profit by harm and injury 
to another, and that whoever bears the disadvantages 
of a thing should also reap the advantages of it ; and Na- 
ture allows a buyer to make a profit on a re-sale. The 
expression Natural Reason (naturalis ratio) is commonly 
used when the former meaning is to be conveyed, and 
Paulus indeed says that Natural Reason is a sort of 
tacit law. To use the term Reason as equivalent to com- 
mon sense and convenience comes very near the doc- 
trine that Utility is the basis of law, and the word utilitas 
is frequently employed by the Romans. 

5. Good feeling and the general moral sense of man- 
kind. For instance, Nature directs that parents should 
be supported by their children, and that a freedman 
should render a certain respect and help to his patron. 
Nature prohibits theft, and makes certain offences (e.g. 
adultery) disgraceful, while other offences are not neces- 
sarily base (turpia). So — and this is an interesting il- 
lustration of Roman sentiment — it is against Nature to 
contemplate the probability that a freeman may become 
a slave — although this is an event which may sometimes 
happen. One may refer either to this or to the preceding 
category the ascription to Nature of the principle that 
faith must be kept by a debtor, even where he has not 
bound himself in a formal way. (Is JVatura debet 
quern iure gentium dare oportet, cuius fidem secuti 
sumus.) 

One jurist only, Ulpian, gives a yet further sense to 
the term Law of Nature, making it cover those instincts 
and physical relations which other animals have in com- 
mon with man, and which may be called the raw mate- 



588 THE LAW OF NATURE 

rial upon which Custom acts 1 . But this fancy of his, 
which appears now and then in other ancient writers 2 , 
and received great attention in the Middle Ages because 
the passage was embodied in Justinian's Institutes, is 
devoid of practical importance even for Ulpian's own 
treatment of legal topics. It has been much ridiculed 
by the moderns, but has recently received a sort of 
reinforcement or illustration from an unexpected quar- 
ter. Mr. Darwin has suggested that the origin of our 
moral ideas is to be sought in the accumulated experi- 
ence of animals, which in the course of long ages ripened, 
to some slight extent, in the higher species, and ulti- 
mately ripened far more completely in man, into the 
beliefs and usages which govern the life of primitive 
peoples, and out of which morality has been insensibly 
developed in comparatively recent times. Upon any 
such hypothesis the gap between man and other animals 
would become»less wide, and a certain community might 
be ascribed to them with man in what may be called the 
rudimentary protoplasm of customary law. 

In its practical applications, the idea of Nature or the 
Law of Nature, blent with the idea of Equity (for the two 
terms are in some departments, and in the mouths of 
many jurists, equivalent and interchangeable), extends 
itself over nearly the whole field of law. It supplements 
or modifies the relations of parents and children, of pa- 
trons and freedmen, and even of slaves, as these rela- 
tions had been established by the ancient strict law of 
Rome. A slave is to ius civile merely a thing, but a re- 
gard for Nature causes him to be treated as being in 

1 ' Natural Law is that which Nature has taught all animals ; for that kind of 
law is not peculiar to mankind, but is common to all animals. . . . Hence comes 
that union of the male and female which we call marriage ; hence the procreation 
and bringing up of children.' 

2 As, for instance, in Pliny the Elder's ascription to the lower animals of moral 
sentiments (Hist. Nat. viii. 5 ; viii. 16, 19 ; x. 52). Michael Drayton's lines, of birds 
pairing in spring, — 

1 And but that Nature by her all-constraining law, 
Each bird to her own kind this season doth invite,' — 
hover between Ulpian's ' Law of Nature ' and the ' Laws of Nature ' of modern 
science. 



<» 



THE LAW OF NATURE 589 

some respects a person. In the law of property, of in- 
heritance, of obligations, and of procedure, a great many- 
principles drawn from this source have been embodied 
in rules which qualify or supersede the rigour of the 
older law in most important points. It is only by ex- 
amining these in detail that the skill, and tact, and sound 
judgement, which the Romans showed in working out 
the idea, can be duly appreciated. To enumerate them 
here would, however, be impossible: one might as well 
try to enumerate the numerous points in which Equity 
has affected and amended the common law of England. 
Speaking broadly, the Law of Nature represented to 
the Romans that which is conformable to Reason, to the 
best side of Human Nature, to an elevated morality, to 
practical good sense, to general convenience. It is 
Simple and Rational, as opposed to that which is Arti- 
ficial or Arbitrary. It is Universal, as opposed to that 
which is Local or National. It is superior to all other 
law because it belongs to mankind as mankind, and is 
the expression of the purpose of the Deity or of the 
highest reason of man. It is therefore Natural, not so 
much in the sense of belonging to men in their primitive 
and uncultured condition, but rather as corresponding 
to and regulating their fullest and most perfect social 
development in communities, where they have ripened 
through the teachings of Reason 1 . But if any disciple 
of Bentham, looking not at the sonorous language oc- 
casionally used to describe its origin, but at its practical 
applications, calls it the expression of good sense and 
good feeling, the law which springs from an enlightened 
view of Utility, he will not be far wrong, as indeed the 
idea of practical convenience is frequently associated 
with those of Nature and Reason in the Roman texts 2 . 



1 This is, broadly speaking, the view of the Classical jurists. But occasionally, 
especially in late times, phrases are used which point to primitive societies as gov- 
erned by the natural law : e.g. Novell. lust, lxxxix. c. 12, § 5. 

2 So in a fragment preserved by Dositheus, a jurist of classical times says of ' ius 
naturale vel gentium ' — ' omnes nationes similiter eo utuntur : quod enim bonum 
et aequum est omnium utilitati convenit.' 



590 THE LAW OF NATURE 

A modern precisian might say that the Romans ought 
to have called it not ' the Law of Nature,' but ' mate- 
rials supplied by Nature for the creation of a law,' a 
basis for law rather than the law itself. To the Romans, 
however, such a criticism would probably have seemed 
trivial. They would, had the distinction been pro- 
pounded to them, have replied that they knew what the 
critic meant, and had perceived it already; but that they 
were concerned with things, not words, and having a 
practical end in view, were not careful about logical or 
grammatical minutiae. 

This conception, or at any rate the attempt to apply 
this conception to Positive Law, would seem to be ex- 
posed to two dangers. One is that of wasting time and 
pains in hunting for those institutions or rules which 
are most characteristic of man in the earlier stages of 
his progress, or which have been in fact most generally 
in vogue among men. This danger the Roman jurists 
completely avoided. Their Law of Nature had nothing 
to do with any so-called State of Nature, and they never 
troubled themselves about primitive man, leaving him 
to the poets and the philosophers. And though they 
talked of their ius gentium as roughly equivalent to their 
ius naturae, we do not find them endeavouring to sup- 
port their view of what is reasonable and natural by 
instances drawn from such and such peoples who had 
adopted the rules they had themselves made part of 
their ius gentium 1 . They are content to ascribe to ius 
gentium that which is so obviously reasonable and con- 
venient that the general usage of mankind approves it, 
such as the principle that the shores of the sea are open 
to the common use of all (a principle which, however, 
English and Scottish law have never fully admitted), the 
principle that a thing which has no owner becomes the 

1 Although they sometimes dwell on the fact that an institution is to be found 
among all nations. So Gaius observes of Guardianship, ' Impuberes in tutela esse 
omnium civitatium iure contingit, quia id naturali rationi conveniens est ut is, qui 
perfectae aetatis non sit, alterius tutela regatur ; nee fere ulla civitas est in qua non 
licet parentibus liberis suis impuberibus testamento tutorem dare' {Inst. i. 189). 



THE LAW OF NATURE 591 

property of the finder, the principle that a debtor ought 
to pay his debts. Redde quod debes aequissima vox 
est, et ins gentium prae se ferens. 

The other danger is that the idea of Nature, as the 
true guide to the making and interpreting of law, may 
lead to speculative vagueness, and that the identifica- 
tion of Nature with Morality may tempt the legislator 
or the judge into efforts to enforce by law duties best 
left to purely moral sanctions. This danger also the 
Romans escaped. They escaped it by virtue of their 
eminent good sense and their practical training. The 
lofty precepts of morality which they were fond of pro- 
claiming, and which they sometimes declare it to be the 
duty of the lawyer to teach and of the magistrate to 
apply, had after all not much more to do with the way 
in which they built up the law than the flutings of the 
columns or the carvings on the windows have to do with 
the solid structure of an edifice. These decorations 
adorned the Temple of Justice, but were never suffered 
to interfere either with its stability or with its conveni- 
ence for the use of men. In point of fact, the rules of 
Roman law, down to the age of Constantine, whose suc- 
cessors, wanting the sage advisers of an earlier day, 
tried some foolish experiments, furnish a model of the 
way in which moral principles should be applied to posi- 
tive law. Though the Romans did not in theory draw 
any very clear line between the sphere of law and that 
of morals, they succeeded admirably in practice in keep- 
ing their moral zeal on the safe side of the line which 
divides the standard of conduct which the State may, 
and that which it had better not, try to enforce ; while 
they certainly did impart to the law as it left their hands 
a spirit of honour, good faith, and equitable fairness 
which modern systems have never surpassed, and which 
is in some respects higher than that of our own English 
law. 

The Roman jurists of the first three centuries of the 
Empire were a unique phenomenon in the history of 



592 TEE LAW OF NATURE 

mankind, and they had a unique opportunity. They 
were at once the makers, the expounders, and the ap- 
pliers of law. They worked for the whole civilized 
world. They were hampered by no meddlesome legis- 
latures, for legislatures did not exist, and hardly at all 
by capricious monarchs, for the good Emperors en- 
couraged them, while the voluptuaries, as well as the 
unlettered soldiers, left them alone. Their only restraint 
was that useful and necessary one which dwells in the 
deference of the wise for one another, and in the respect 
of the leaders of a great profession for the opinion of 
the profession as a whole. They were not indeed philo- 
sopher-kings in Plato's sense, but they were sufficiently 
imbued with the spirit of philosophy to value principle 
and to rise superior to prejudice. Accordingly they were 
able to do a work which has been of inestimable value 
for all time, since it has become, like the philosophical 
ideas of the Greeks and the religious ideas of the Se- 
mites, part of the common heritage of mankind. Rome 
is the only city to which it has been given to rule the 
whole of the civilized world, once as a temporal, once as 
a spiritual power. In both phases she welded the di- 
verse and incongruous elements into a united body, 
whose elements, even when they had again been dis- 
joined, retained traces of their former union. And on 
both occasions it was largely through law that she 
worked, the ecclesiastical law of her later period being 
an efflux of the civil law of her earlier. 

We have now traced the origin and growth of the 
conception of a Law of Nature in the ancient world, 
and have perceived how, having taken shape and re- 
ceived an ethical colour among the Greeks, it was turned 
to practical account by the Romans. It was not to them, 
as it has often been deemed by recent English writers, 
a purely negative and barren conception, nor was it 
wholly a destructive, and, if the expression may be per- 
mitted, a ground-clearing conception. Doubtless a large 
part of its work was done in first undermining and finally 



THE LAW OF NATURE 593 

overcoming the traditional authority of the old peculiar 
and usually cumbrous Law of the City (ius quiritium), 
which was often harsh and sometimes arbitrary. An- 
other part was done in explaining old rules so as to 
amend their operation. But the conception of Nature 
as a source of Law was also a corrective and expansive 
force, not merely in sweeping away what had become 
obsolete, but also in establishing what was new and 
suited to the time. It found a solid basis for law in the 
reason and needs of mankind, and it softened the transi- 
tion from the old to the new, first by developing the 
inner meaning of the old rules while rejecting their 
form, extracting the kernel of reason from the nut of 
tradition, and secondly by appealing to the common 
sense and general usage of mankind, embodied in the 
ius gentium, as evidence that Nature and Utility were 
really one, the first being the source of human reason, 
the latter supplying the grounds on which reason 
worked. Thus the idea of Nature, coupled with that 
of customs generally observed by mankind, which em- 
bodied their experience, became a fertile and creative 
idea, which turned the law of a city into the law of the 
world, and made it fit to be a model for succeeding 
ages. 

VII. The Law of Nature in the Middle Ages. 

When the succession of Roman jurists as a profes- 
sional class came to an end, and the level of culture in 
the whole community declined in Western Europe after 
the destruction of imperial power in the Western pro- 
vinces, the ecclesiastics, among some of whom a tincture 
of legal Knowledge remained, naturally identified the 
law of Nature with the law of God. We have this clearly 
expressed in the passages from Isidore of Seville (who 
wrote early in the seventh century) which obtained im- 
mense circulation and influence by being incorporated 
(in the twelfth century) in the introductory paragraphs 
38 



594 THE LAW OF NATURE 

of the Dccretum of Gratian, the oldest part of the col- 
lected Canon Law. Isidore says 1 : ' All laws are either 
divine or human. The divine rest upon Nature, the 
human upon custom; and the latter accordingly differ 
among themselves, because different laws have pleased 
different nations.' Gratian himself, in the paragraph 
preceding, says : ' Mankind is ruled by two things, na- 
tural law and customs. Natural Law is that which is 
contained in the law and the gospel, whereby every one 
is commanded to do to another that which he would 
have done to himself.' This identification, already sug- 
gested by the Stoics and by some of the Roman jurists 
themselves 2 , was inevitable as soon as Christianity ap- 
peared on the scene. St. Paul, as we have seen, recog- 
nized a law written by God on men's hearts ; St. Augus- 
tine speaks of the Eternal Law which governs the City 
of God. Nature — that is to say the Power that rules all 
things, the Force that is in all things — is, to a Christian, 
God ; as St. Chrysostom says, ' when I speak of Nature 
I mean God, for it is He who has made the world 3 .' The 
idea receives its final expression in Dante's identifica- 
tion of the Divine Love with the Force that pervades the 
universe — 

' L'Amor che muove il sol e le altre stelle.' 

Accordingly the scholastic philosophers posit a Law of 
Nature as being the work of God. St. Thomas of 
Aquinum introduces a useful distinction which exer- 

' 1 ' Omnes leges aut divinae sunt aut humanae. Divinae natura, humanae moribus 
constant, ideoque hae discrepant, quoniam aliae aliis gentibus placent. Fas lex 
divina est : ius lex humana. Transire per agrum alienum fas est, ius non est.'— 
Dist. Prima, c. i. ' Humanum genus duobus regitur, naturali videlicet iure et 
moribus. Ius naturale est quod in lege et evangelio continetur, quo quisque iube- 
tur alii facere quod sibi vult fieri et prohibetur alii inferre, quod sibi nolit fieri. 
Unde Christus in Evangelio " Omnia quaecunque vultis ut faciant vobis homines, 
et vos eadem facite illis. Haec est enim lex et prophetae." ' Here the Sermon on 
the Mount is taken as stating the Law of Nature. 

2 Cf. the citation by Marcian, in Dig. i. 3, 2, of the dictum of Demosthenes {Adv. 
Arising: p. 774) v6/jlo<; et!p7)/u.a Kal Supov 9eov ■ and Justinian's Institutes, i. 2, § 11 
' Naturalia iura, quae apud omnes gentes peraeque servantur, divina quadam provi- 
dentia semper firma atque immutabilia permanent.' 

3 orav eiTrio rr)v <f>v<rt.v, ©ebi> Ae'yio, 6 yap T7]i' fyvaiv 8rnj.iovpyrj<ra'; airbs earix. 



THE LAW OF NATURE 595 

cised an enduring influence. The Eternal Law which 
governs all things is the expression of the Reason of 
God, the supreme Lawgiver. That part of it which is 
not revealed, but is made known to man by his own 
reason, may fitly be called Natural Law, as being the 
outcome of human reason, itself created and directed by 
the Divine Reason. Thus the sharing in the Eternal 
Law by a rational creature is Natural Law 1 . And so 
Suarez says that the Law of Nature is in God the 
Eternal Law, and in men is the light which carries 
this eternal law into their souls, being applied by con- 
science. 

I cannot here pursue an inquiry into the treatment of 
these notions by the scholastic theologians and philo- 
sophers, nor by their successors who belong to the 
school of the Catholic Renaissance in the sixteenth cen- 
tury, for the subject is a vast one. Neither have I space 
to deal with the students and teachers of the Roman 
Law during the thirteenth, fourteenth, and fifteenth cen- 
turies, of whom however it may be said that Natural 
Law has in their pages a less definite character than it 
bore to the ancient jurists, and is more coloured by that 
ethical atmosphere which they found in the treatment of 
it by Cicero and Aristotle and by such ecclesiastical au- 
thorities as Gratian and St. Thomas. It was during 
these centuries less widely and effectively used in the 
sphere of pure law than in those of speculation and actual 
political controversy. In these latter spheres it played 
a great part, being appealed to by the advocates as well 
of imperial as of papal pretensions, the one side claiming 
its support for the temporal, the other side for the 
spiritual potentate. All admitted that it stood above 
both these powers, and some maintained that where 
either power transgressed it, he might be lawfully re- 
sisted by his subjects 2 . Now and then princes put it 

J Summa Theologiae, prima secundae, Q. xclv. 2. 

2 On this subject see the authorities collected and luminously expounded by Pro. 
fessor Dr. Gierke in Ynsjohannes Althusius, chap. vi. 



»/ 



596 TEE LAW OF NATURE 

forward as a ground for legislation. Philip the Fair of 
France, proposing to liberate serfs, says (a.d. 131 1) that 
' every human creature formed in the image of Our Lord 
ought by natural law to be free.' Now and then a jurist 
specifies matters in which it limits the legislator's power, 
as Baldus says, neither Emperor nor Pope could validly 
authorize the taking of usury 1 . But one can hardly 
say that the idea emerges as an independently forma- 
tive power in the growth either of the Canon Law in 
Europe, or of the law of Islam in the East, for the ob- 
vious reason that ecclesiastical systems do not need it. 
The Bible in Christendom, the Koran where Islam ruled, 
supplied all the philosophical basis and all such indica- 
tions of the Divine Will as were needed to give law a 
moral character. So, although the term is indeed fre- 
quently used by mediaeval writers of all types, it is gene- 
rally used with a theological or ethical bearing. Na- 
ture, except in such a sense as was given to it by St. 
Paul, or in such expressions as were sanctioned by 
Aristotle or by the texts of the jurists, would have 
sounded strange, and might have savoured of hetero- 
doxy. As the Chancellor says in the second part of 
Goethe's Faust — 

' Natur und Geist ! so spricht man nicht zu Christen : 
Desshalb verbrennt man Atheisten.' 

Yet throughout this period the place which this con- 
ception holds and the function which it discharges in the 
world of thought, if not in that of practice, are of high 
import. It is an assertion of the supremacy of the eter- 
nal principles of morality, of the duty of princes to obey 
those principles, of the right of citizens to defend them, 
if need be even by rebellion or tyrannicide. It proclaims 
the responsibility to God of all power, whether spiritual 
or temporal, and the indestructible rights of the indi- 

1 Gierke, ut supra. Baldus and other jurists declare that the Emperor ' tenetur 
ratione naturali, cum ius naturae sit potentius principatu,' and one goes so far as 
to hold him to be also bound by ius gentium. See Arthur Duck, De Usu et A uthori- 
tate Juris Civiiis, bk. i. chap. iii. § 12. 



THE LAW OF NATURE 597 

vidual human being. Finding in the Divine Justice the 
ultimate source of all law, it imposes a restraint upon 
the force which positive law has at its command, and 
sets limits to the validity of positive laws themselves. 
Whether or no the individualistic spirit of the Teutonic 
races contributed to this remarkable change from the 
attitude of the Roman lawyers is a question I will not 
attempt to discuss. But it is clear that the influence of 
Christian teaching had, even under a dominant and per- 
secuting ecclesiastical system, stimulated the vindication 
in the name of Natural Law of principles which are the 
foundation both of civil and of religious liberty. 



VIII. The Law of Nature in Modern Times. 

When the European mind, stimulated by Greek litera- 
ture and by the ecclesiastical revolt of the sixteenth 
century, as well as by a group of coincident external 
causes, began to play freely round the great subjects 
of thought, a still wider career opened for this ancient 
conception. The history of that career, however, be- 
longs to the domain of philosophy and of political 
science rather than to that of jurisprudence. Though 
it was chiefly from the Roman texts that the men of the 
Renaissance and Reformation eras drew their notions 
of Nature and natural law 1 , and though the term ius 
gentium reappears as indicating the recognition of Na- 
tural Law by mankind at large, the speculations which 
these notions inspired turned largely upon such ques- 
tions as the origin of law in general, a point which, as 
already observed, had not much occupied the Romans, 
and (still more) upon the source of authority and politi- 
cal power, and on the right of any constituted authority 
to demand obedience. The systems of the Middle Ages, 

1 The Romans had been content to derive law (see Essay X, p. 525) from the will 
of the people, whether expressed directly by legislation or tacitly by customs, and 
this doctrine continued to be enounced under the autocracy of Justinian much as it 
had been in Republican times. 



598 THE LAW OF NATURE 

which deduced the powers of the Pope from Christ's 
words to St. Peter, and the powers of the Emperor 
either directly from God or mediately through the Pope, 
and which found the source of all other spiritual and 
temporal power in some sort of delegation from one 
or other of these potentates, had now vanished, and 
thinkers were much concerned to find a new and sounder 
foundation on which to plant the Monarch and the State. 
Thus Nature came to play a new part : and presently 
there appeared theories regarding an original State of 
Nature, a conception not necessarily connected with 
that of the Law of Nature, yet one which has historically 
been closely associated therewith. This newly-invented 
State of Nature was neither the Golden Age of Hesiod, 
nor the Saturnia regna of Virgil, nor the brutish sava- 
gery (muturn et turpe pecus) of Horace. The man of 
the State of Nature was highly intelligent, and he was 
also highly self-assertive. In Hobbes he appears as in 
perpetual war with his fellows 1 ; and that ingenious and 
uncompromising philosopher finds in this fact the basis 
of his theory of the State, holding that men, in order to 
get rid of their distracting strife, agreed with one an- 
other to surrender all their natural rights to get what 
they can for themselves by force into the hands of a 
Monarch, who thereby acquired a perpetual title to the 
obedience of all ; the contract, since not made with him, 
being nowise dissoluble in respect of any misfeasance 
on his part. Locke, on the other hand, argues for a 
Natural Law which issues from Reason, is prior to all 
governments, and being superior to them entitles men 
to vindicate their natural rights against tyranny. With 
him, therefore, as with most thinkers of the seventeenth 
and eighteenth (and indeed also of earlier) centuries, 
Natural Law, being the offspring of Reason and the 
foundation of Natural Rights, is the ally of freedom. It 
is invoked, under the name of Natural Right, by the 

1 With Hobbes compare the view of Spinoza, Tractatus Theologico-Politicus, 
cap. xvi. 



THE LAW OF NATURE 599 

framers of the Declaration of Independence in 1776, and 
therewith enters the field of modern politics as a con- 
queror. Contemporaneously the doctrine was being 
spread over the Old World by Rousseau in his theory of 
the State of Nature and the Social Contract (first pub- 
lished in 1762) : and it presently became the basis of the 
Declaration of the Rights of Man made by the French 
Convention in 1789. 

The old theory had now developed into a destructive 
political force. Any one can see to-day that this revolu- 
tionary quality was always latent in it : the singular thing 
is that, unlike most revolutionary ideas, it should have 
kept the explosive element so long dormant. That 
which had been for nearly two thousand years a harm- 
less maxim, almost a commonplace of morality, became 
in the end of the eighteenth century a mass of dynamite, 
which shattered an ancient monarchy and shook the 
European Continent. Liberty, Equality, Fraternity, are 
virtually implied in the Law of Nature in its Greek no 
less than in its French dress. They are even imbedded 
in the Roman conception, but imbedded so deep, and 
overlaid by so great a weight of positive legal rules and 
monarchical institutions as to have given no hint of their 
tremendous possibilities. 

Let us return from this glance at the political history 
of the conception to note three directions in which it 
has acted, in modern times, within the sphere of law 
proper. 

The first of these is its action upon the law of England. 
Our system of Equity, built up by the Chancellors, the 
earlier among them ecclesiastics, takes not only its name 
but its guiding and formative principles, and many of its 
positive rules, from the Roman aequitas, which was in 
substance identical with the Law of Nature and the ius 
gentium. For obvious reasons the Chancellors and Mas- 
ters of the Rolls did not talk much about Nature, and 
still less would they have talked about ius gentium. They 
referred rather to the law of God and to Reason. But 



600 TEE LAW OF NATURE 

the ideas were Roman, drawn either from the Canon 
Law, or directly from the Digest and the Institutes, and 
they were applied to English facts in a manner not dis- 
similar from that of the Roman jurists. The very name, 
Courts of Conscience, though the conscience may in 
the immediate sense have been the King's, suggests 
that moral element on which the Romans insisted so 
strongly; and the wide^ sometimes almost too wide, 
discretionary power which Equity judges exercised, 
finds its prototype in the passages in Roman texts which 
refer to natural equity as the consideration which guides 
the judge in qualifying, in special cases, the normal 
strictness of law. A passage in the remarkable little 
book called Doctor and Student, written by Christopher 
St. German early in the sixteenth century, observes that 
the term ' Law of Nature ' is not much employed by 
English common lawyers, who generally prefer (it is 
remarked) to talk of the Law of Reason, and to say that 
such and such a rule is grounded in reason, or that 
reason points to such and such a conclusion. Never- 
theless the author recognizes the Law of Nature or 
Reason as one of the three departments of the Law 
Eternal or Will of God, which is made known to man 
partly by Reason, partly by Divine revelation in the 
Scriptures, partly by the orders of princes or of the 
Church, having an authority derived from God. Some 
(it is added) say that all the law of England is part of 
the law of Reason ; but St. German prudently doubts 
whether this can be proved. However, we have here 
another evidence of the influence of the old conception, 
and even, in the reference to a general Law of Nature 
shared in by unreasonable creatures (' for all unreason- 
able creatures live under a certain rule to them given 
by Nature, necessary for them to the consideration of 
their being '), a recurrence of the old notion counte- 
nanced by Ulpian, that the Law of Nature extends to the 
lower animals as well as to mankind. Nor are dicta of 
English judges referring to the Law of Nature wanting. 



THE LAW OF NATURE 601 

Yelverton, under Edward the Fourth, says that in the 
absence of authority the judges ' should resort to the 
Law of Nature which is the ground of all laws.' And 
the law merchant, i.e. the customs commonly observed 
by traders of divers countries, is referred to as part of 
the Law of Nature by Lord Chancellor Stillington in 
the same reign 1 . Here we have the old identification 
of tits naturae and ius gentium which was beginning in 
Cicero's days. Still later, the idea reappeared in the 
doctrine that as the Law of Nature is the foundation 
of all law, positive enactments plainly repugnant to it 
or to C mmon Right and Reason (an equivalent expres- 
sion) ought to be held invalid. Dicta to this effect were 
delivered by Lord Coke and by Lord Hobart, and were 
approved by Lord Holt ; though little (if any) effect has 
ever been given to them. Similar references to the 
' eternal principles of justice ' as capable of overruling 
the acts of State legislatures may occasionally be gleaned 
from the reports of cases decided by American State 
Courts. Blackstone, repeating Cicero, declares that 
' the Law of Nature is binding over all the globe in all 
countries : no human laws are of any validity if contrary 
to this 2 ' ; and he ascribes to ' natural reason and the 
just construction of law 3 ' the extension which his con- 
temporary, Lord Mansfield, gave to the enforcement of 
implied contracts 3 . So we find the Indian Civil Proce- 
dure Code of 1882 laying down that a foreign judgement 
is not operative as a bar if it is, in the opinion of the 
Court which deals with the question, ' contrary to na- 
tural justice.' But the chief practical applications in re- 
cent times of the ancient conception have, very appro- 
priately, arisen where European judicial administration 
has been brought into contact with foreign semi-civi- 
lized peoples on whom the law of their European con- 
querors could not properly be imposed. Thus in British 

1 I owe these references to Sir F. Pollock's Essay in Columbia Law Review, 
already mentioned. 

2 Commentaries, Introd. § 2. 

3 Ibid. bk. iii. chap. ix. 



V 



602 THE LAW OF NATURE 

India the Courts have been directed to apply ' the princi- 
ples of justice, equity, and good conscience x ' in cases 
where no positive law or usage is found to be applicable. 
The second line of action is the part which the terms 
ius naturae and his gentium played in the creation of 
International Law. That branch of jurisprudence has 
a twofold origin. It is due partly to customs which 
grew up among maritime nations in the course. of trade, 
together with the usages and understandings which 
formed themselves in the diplomatic intercourse of 
States, partly to the doctrines thought out and delivered 
by a succession of legal writers, of whom the most fa- 
mous are Hugo Grotius, Albericus Gentilis, Leibnitz, 
and Puffendorf. These thinkers, finding that large parts 
of the field of international relations were not covered 
by pre-existing custom, or that the existing customs 
were often discrepant, were obliged to seek for some 
general and permanent basis whereon to build up a sys- 
tem of positive rules. This basis could not be looked for 
in the laws of any State or States, because no such laws 
could have force beyond the limits of those States, and 
that which was needed was something which all States 
were to observe. Neither could it be expressly deduced 
from the Imperial Roman law, because the Romano- 
Germanic Empire had become a mere shadow of its 
former self, and the old Roman law, being the law of 
a State (though a World-State), did not contain all the 
necessary materials, not to add that anything impe- 
rial was in the earlier part of the seventeenth century 
regarded with suspicion by Protestants. Accordingly, 
Grotius and his successors recurred to the Law of Na- 
ture as being, according to the theory of the ancient 
Roman jurists, a law grounded in reason and valid for 
all mankind. They used it copiously, and some of them 
called their writings ' Treatises on the Law of Nature 

1 See on this subject Sir C. P. Ilbert's Government of India, chap. vi. The ex- 
pression ' equity and good conscience ' in this connexion is as old as the Charter to 
the E. India Company of 1683 ; ibid. chap. i. p. 21. 



THE LAW OF NATURE 603 

and of Nations,' using the old phrase ius gentium 1 in 
what began to be taken as a new sense 2 . It was indeed 
their wish to represent this Law of Nature as being 
essentially a Law for the Nations, i.e. a law governing 
the intercourse of nations. There had in fact been al- 
ways a close connexion between the two conceptions. 
For although the Roman jurists of imperial times had 
employed the term ' Law of the Nations ' to denote, not 
the law applicable between nations, but a part of the law 
which was applied within the Roman dominions, still 
they had held their ius gentium to have been not only 
created by the customs of the nations of the world, but 
therewith also binding on nations generally, and to be 
indeed (save in some special points) a concrete embodi- 
ment of the law which Natural Reason gives to all man- 
kind. Thus the name ' Law of Nature and Nations ' be- 
came well settled; and it is only in our own days that 
the more precisely descriptive (if not quite satisfactory) 

1 When he uses the phrase ius gentium, Grotius dwells on the fact that its force 
springs from the Will of the Nations which use it, and he observes that when it is 
ascribed to the will of all nations it is practically ius naturale, but that there is 
much of it which rests on the will, not of all, but only of many nations, since some- 
times we find a ius gentium holding good in one part of the world which does not 
exist in other parts. 

2 Grotius, who (differing but little from the old schoolmen) defines the eternal 
and immutable Law of Nature as ' dictatum rectae rationis, indicans actui alicui 
ex eius convenientia aut disconvenientia cum ipsa naturali ratione inesse moralem 
turpitudinem aut necessitatem moralem, ac consequenter ab auctore naturae Deo 
talem actum aut vetari aut praecipi,' distinguishes from it the more arbitrary laws 
of God (ius voluntarium) which God may change, whereas He cannot change His 
own Natural Law any more than He can make two and two anything but four. 
In another place he observes that Human Nature itself is the mother of natural 
law, and (through contract) great-grandmother of civil (= positive) law. ' Natu- 
ralis iuris mater est ipsa humana natura, quae nos, etiamsi re nulla indigeremus, ad 
societatem mutuam appetendam ferret ' (here repeating Aristotle), ' civilis vero 
iuris mater est ipsa ex consensu obligatio, quae cum ex naturali iure vim suam 
habeat, potest natura huius quoque iuris quasi proaviadici ' (Proleg, q. 16). He had 
just before said, ' Cum iuris naturae sit stare pactis, necessarius enim erat inter 
homines aliquis se obligandi modus, neque vero alius modus naturalis fingi potest ; 
ab hoc ipso fonte iura civilia fluxerunt. Nam qui se coetui alicui aggregaverant, 
aut homini hominibusque subiecerant, hi aut expresse promiserant, aut ex negotii 
natura tacite promisisse intelligi, secuturos se id quod aut coetus pars maior, aut hi, 
quibus delata potestas erat, constituissent.' His ius divinum voluntarium is di- 
vided into that part which was delivered by God to all mankind at the Creation, 
after the Flood, and at Christ's coming, and that part which was delivered to 
Israel alone. It it therefore Revealed Law, and so different from the Law of 
Nature. 



604 THE LAW OF NATURE 

term ' International Law ' has, in superseding the older 
name, acquired a general acceptance. 

Thirdly, the expression Law of Nature has, within 
comparatively recent times, obtained in Germany, 
France, and Italy, the meaning of the Philosophy of 
Law, that is to say, the metaphysical basis of legal con- 
ceptions and of the most general legal doctrines. Some 
observations will be found elsewhere in this volume * 
upon this Naiurrecht or Droit Naturel, to which much 
labour and thought have been devoted by Continental 
writers, though very little by those of England or of 
the United States. Whatever value the works of these 
writers may have for metaphysics or ethics, they shed 
comparatively little light upon law in its proper sense. 
The study of Law in general seems nowadays likely to 
be practically useful chiefly on its concrete side, as what 
the Romans call a ius gentium, that is to say, as a collec- 
tion and examination, a criticism and appraisement of 
the rules adopted by civilized nations on topics with 
which the legislation of all or most of such nations has 
to deal. In other words, Comparative Jurisprudence 
promises more fruit than abstract speculation on the 
foundations of law. 

IX. Conclusion. 

Except from the lips of the Continental theorists just 
referred to, we now seldom hear the term Law of Na- 
ture. It seems to have vanished from the sphere of poli- 
tics as well as from positive law. A phrase which was, 
in the eighteenth century, a potent source of inspiration 
to some and a tocsin of alarm to others, is not now in- 
voked by either of the two schools of thought which 
condemn, or seek to overthrow, existing institutions. 
The Social Democrats do not appeal to Nature, perhaps 
because they have realized that there never was a state 
of society in which all property was held in common by 

1 See Essay XII. 



THE LAW OF NATURE 605 

large organized communities, and perhaps also because 
they feel that so complex a system as they desire could 
not well be described as natural. Anarchists do not 
appeal to the Law of Nature, because their quarrel is 
with law altogether, and those among them who are 
educated enough to desire to find a philosophical basis 
for their doctrines are also educated enough to feel and 
honest enough to admit that history, which knows to-day 
far more about primitive man than she did a century ago, 
would afford no such basis in any state of nature she 
could possibly set before us. 

Nevertheless the notion sometimes appears, and pro- 
perly appears, in unexpected places. The British Order 
in Council for Southern Rhodesia, of October 20, 1898, 
directs the Courts of that territory to be ' guided in 
civil cases between natives (i.e. Kafirs) by native law, 
so far as that law is not repugnant to natural justice or 
morality, or to any Order made by Her Majesty in 
Council.' 

Whether this time-honoured conception has or will 
hereafter have any practical value for the modern world 
is a further question, but one for conjecture rather than 
discussion. We have seen what good work it did for 
the ancient world in breaking down race prejudices, 
and in particular for the Roman jurists in giving them 
a philosophical ideal towards which they could work 
in expanding and refining the law of the Empire. Nor 
should we forget that in later times it has sometimes 
stimulated resistance to oppression, and has corrected 
the tendency, always present among lawyers and in a 
ruling class, to defer unduly to tradition and to defend 
institutions which have become incompatible with rea- 
son, and hurtful to the common interest. This kind of 
work may not seem to be needed from the old idea in 
our own times. There is not much risk, either in Europe 
or in North America, that tradition will check reform, 
or that institutions will be respected and maintained 
merely because they exist. But our planet may expect, 



606 THE LAW OF NATURE 

even according to the most pessimistic physicists, to 
last for millions of years. Who can say that an idea 
so ancient, in itself simple, yet capable of taking many 
aspects, an idea which has had so varied a history and 
so wide a range of influence, may not have a career re- 
served for it in the long future which still lies before the 
human race ? 



XII 

THE METHODS OF LEGAL 
SCIENCE 

Whoever, having heard the Roman law praised as 
a philosophical system, enters upon the study of it, and 
peruses either the Corpus Iuris Civilis or the writings 
of modern German civilians, will presently find himself 
asking, Where is the legal philosophy of the Romans 
to be found? By which of them is the subject treated 
in the abstract? Where are those general views on 
the nature and essence of law with which a philosophical 
treatment of it ought to begin? And where is that 
theory of the historical evolution and development of 
law which represents another method of treating juris- 
prudence in a scientific spirit? 

There is scarcely anything answering to the student's 
expectations, either in the original Roman texts, or in 
those modern books wherein the scattered rules and 
maxims of the ancient jurists have been rearranged in 
systematic form. In the proem and introductory title 
of Justinian's Institutes and in the first few titles of his 
Digest may be found some few dicta, more sonorous 
than exact, about Justice and Nature and the origin of 
law. Nothing more in the Corpus Iuris nor in any other 
of the few old legal writings that have survived. There 
is no trace that any lawyer ever composed a treatise on 
that which we in England call General Jurisprudence, 
and which the Germans call Rechtsphilosophie or Natur- 



608 THE METHODS OF LEGAL SCIENCE 

recht (Philosophic de Droit, Droit Naturel). Cicero, 
who at one time intended to write a book on the civil 
law, throws out some remarks on the subject, but these 
are rather philosophical than legal, and it would seem 
either that no later philosopher, whether Greek or 
Roman, whether Academic or Stoic, followed in this 
path, or else that the treatises of those who did were not 
thought worthy of being preserved, or even of being 
quoted by the compilers of Justinian's Digest. 

This absence of what the enlightened modern lay- 
man, though certainly not the professional English 
lawyer, expects in a refined and comprehensive system 
of jurisprudence, raises the question which those who 
approach the study of law, especially in a university, 
doubtless often put to themselves — Has the Roman law 
suffered from the want of a foundation of legal philo- 
sophy, or is that foundation really needless, and can a 
1 practically useful and scientifically symmetrical system 
of law exist without it ? 

In order to answer this question let us consider what 
is meant by the Philosophy of Law, or the Science of 
Law in general, conceptions to which it might be con- 
venient to restrict the terms Jurisprudence (or General 
Jurisprudence) hitherto somewhat laxly used 1 , and 
what are the proper relations of such a science on the 
one hand to a working system of law, and on the other 
hand to the principles and considerations which guide 
the legislator. 

Seeing that in each of the so-called moral or social 
or political sciences the essential characteristic is its 
method, and that it is by its possession of a method that 
its claims to be a science must be tried, we had better 
begin by inquiring what method or methods the science 
of law in general recognizes and applies ; and whether, 
if there be more than one, any one of these is entitled 
to be deemed the right method. As law is a science 

1 As has been proposed by Dr. Holland in his admirable Elements of Jurispru- 
dence. 



THE METHODS OF LEGAL SCIENCE 609 

directed to practice, the test of Tightness will evidently 
be the practical utility of the method in producing a 
system of law which shall be symmetrical, harmonious, 
and suited to the needs of the people whose social rela- 
tions it has to adjust and regulate. 

Four methods are commonly spoken of as employed 
in legal science, being the following : — 

The Metaphysical or a priori method. 

The Analytic method. 

The Historical method. 

The Comparative method. 
This classification is doubtless open to criticism, but 
being in actual use, it may serve our present needs. 

The Metaphysical method, which, without stopping 
to search for a definition, we may describe as being the 
method which most German, French, and Italian writers 
on the Philosophy of Law or the ' Law of Nature ' have 
adopted, begins by investigating the abstract ideas of 
Right and Law in their relation to Morality, Freedom, 
and the human Will generally. It may thus be regarded 
as that branch of metaphysics, of psychology, of ethics, 
perhaps also of natural theology (according to the de- 
limitation of these departments of inquiry which any 
one may adopt), which concerns itself with the civil re- 
lations of men to one another in the most general and 
abstract form of those relations. It proceeds to deal 
with the fundamental legal conceptions or categories of 
the subject, such as Sovereignty, Obedience, Right, 
Claim, Duty, Injury, Liability, and with the notions in- 
volved in certain fundamental and universal legal insti- 
tutions such as the Family, Property, Inheritance, Mar- 
riage, Contract, in each case endeavouring to discover 
the ethical or psychological basis of the conception or 
institution, and to build up the institution in its simpli- 
city, purity, and perfection on that basis, determining 
the form which it ought to take— that is to say, which 
God or Nature designed it to take — in conformity to its 
essence and indwelling creative principle. In the lan- 
39 



610 TEE METEODS OF LEGAL SCIENCE 

guage of Plato, it seeks to discover and describe the 
Idea (ctSos) of the conception or institution. In par- 
ticular, this method treats the notion of Right from all 
possible sides, connecting it with the Deity, with na- 
ture in general, with man's nature, with the family, with 
the primordial social and political relations of men, and 
endeavours in like manner to determine the conception 
of Duty and the essence of Moral Obligation, and the 
reasons why Obligation attaches to certain human rela- 
tions, whether it springs out of these relations, e.g. out of 
those of the Family, or whether, coming from some 
other source, it gives to them a new moral quality. With 
certain philosophers the method extends itself to poli- 
tics, and discusses questions some of which hardly be- 
long to the legal sphere, e.g. the rights of majorities as 
against minorities ; the grounds on which a ruler may 
demand submission, or those on which subjects may 
properly resist or depose a ruler ; the relations of civil 
authority to ecclesiastical authority, and the limits 
within which, in case of conflict, obedience is due to one 
or to the other, perhaps even the limits within which the 
legislator may fitly enforce duties primarily moral. 

The writers who have followed this method may be 
divided into two classes. Some remain in the field of 
abstractions. Positing a few extremely general ideas 
or principles, they develop out of these by way of de- 
duction or explication the rest of their doctrine down 
to such legal details, usually scanty, as they condescend 
to give. The whole system is, or seems to be, spun out 
of the author's fundamental conceptions. Others, while 
using abstract terms with equal boldness, turn out when 
closely scrutinized to have really drawn their notions 
from the concrete, and to be merely generalizing from 
phenomena, more or less numerous, which they have 
seen or heard or read of. Obviously, even the more 
professedly abstract writers of the former class do in 
fact found themselves largely, often more largely than 
they fancy, upon observation, for this no man can help 



THE METHODS OF LEGAL SCIENCE 611 

doing, however much he may prefer the ' high priori 
road.' There is, however, a marked difference between 
the way in which this method is handled by different 
types of thinkers. Some soar so high through the em- 
pyrean of metaphysics that it is hard to connect their 
speculations with any concrete system at all. Others 
flutter along so near the solid earth of positive law that 
we can (so to speak) see them perching on the stones, 
and discover the view they take of the questions with 
which the practical lawyer or legislator has to deal. 

The worth of the books, abundant on the Continent 
of Europe but scarce in England and the United States 
(though a little less scarce in Scotland), which have been 
composed by writers of this school, will be estimated 
differently by those who enjoy speculation for its own 
sake, and by those who think it a waste of time unless it 
bears fruit in truths of definite practical utility. If the 
latter criterion of value be accepted, the importance of 
these treatises cannot be placed very high. The foliage 
is luxuriant, but the fruit scanty. A vigorous and inge- 
nious mind will doubtless, in whatever way he may treat 
the subject, stimulate thought in the student, and will 
probably throw out just and suggestive remarks which 
may be treasured up as practically helpful. As some 
brilliant thinkers, at the head of whom stand Immanuel 
Kant and G. W. F. Hegel, have adopted this method 
in handling the Philosophy of Law, and have given a 
powerful impulse to many able disciples, it would be 
foolish and presumptuous to disparage their treatises. 
Nevertheless, the general conclusion of English lawyers 
has been that not much can be gathered from lucubra- 
tions of this type. They are decidedly hard reading; 
and the harvest reaped is small in proportion to the time 
spent. Threading its way through, or, as some would 
say, playing at hide-and-seek in, a forest of shadowy 
abstractions, this method keeps too far away from the 
field of concrete law to throw much light on the diffi- 
culties and controversies which the student of any given 



612 THE METHODS OF LEGAL SCIENCE 

system encounters. Nevertheless, while this is the gene- 
ral character of the school, there are some books refera- 
ble to it wherein one finds legal conceptions analysed 
with an acuteness which cannot but sharpen the reader's 
wits, and others which pile up much ingenious and subtle 
thinking round the points where law and ethics come 
into contact, some legal problems being really ethical 
problems also. Even a student who has experienced 
many disappointments will not lightly abandon the hope 
that some lawyer with a gift for speculation will one day 
employ this method — in itself a method with legitimate 
claims to respect — to produce a book nearer to the re- 
alities of the subject than any which the last two cen- 
turies have seen. There is more to be expected from 
such a man than from a metaphysician who thinks he 
understands law. Higher and rarer gifts are no doubt 
needed for metaphysics than for law; indeed even high 
poetic genius is not so rare as a really original genius 
for speculation. But the lawyer who rises into meta- 
physics has at any rate his body of practical knowledge 
to keep him in the path of sense : the metaphysician 
dealing with law may easily lose himself in mere words. 

The Analytic Method, standing in a marked and some- 
times a scornful opposition to the method we have been 
considering, leaves metaphysics and ethics on one side, 
and starts from the concrete, that is to say, from the 
actual facts of law as it sees them to-day. It takes the 
terms, whether popular or technical, which are in cur- 
rent use. It endeavours to define these terms, to 
classify them, to explain their connotation, to shov 
their relation to one another. It is of course frequently 
obliged, when it attempts, as it must attempt, to be logi- 
cal, to modify the existing terminology, and attach a 
new specific and technical sense of its own to some 
words, or even to invent terms altogether new. 

This method, though it is essentially, in its more ob- 
vious and rudimentary form, so much a matter of com- 
mon sense as to have been more or less employed by 



THE METHODS OF LEGAL SCIENCE 613 

all who have thought or written about law, and may 
possibly have been used in Egypt under the Fourth 
Dynasty, is most familiar to us as that employed with 
boldness and spirit by Jeremy Bentham, and subse- 
quently proclaimed by the school he founded to be the 
only helpful mode of handling the subject. That school 
rendered a service to legal study in England by the 
keen east wind of criticism which they unloosed to play 
upon our law, and which ended by uprooting a good 
many old and probably rotten trees. They roused an 
interest in the discussion of general legal doctrines 
which had been wanting during the first three quarters 
of last century. But they fell into two grave errors. 

They laid the foundations of legal science in the so- 
called Theory of Utility, which, be it sound or unsound, 
has nothing to do with the Analytic Method, nor with 
Positive Law. In the first place, it is a theory of human 
action which properly belongs to ethics or psychology ; 
and secondly, in so far as it can be deemed to affect law, 
it affects neither the classification and exposition, nor 
the application of law (except in so far as it may sub- 
serve interpretation), but the making of law. That is to 
say, it belongs not to the jurist but to the legislator. 
Its place is that of a practical guide to the science we 
call the Principles of Legislation. But in this applica- 
tion it is no new discovery, for all legislators have at 
all times professed, and many have honestly sought, to 
be guided by it. Expediency, to use the older and less 
formal term, is a principle obvious in legislation and 
dangerous in law,, for though the commentator may 
properly use it, the judge may readily abuse it. That 
Bentham, who was first and foremost a reformer, should 
incessantly insist on the doctrine of utility, till he al- 
most crushed his legal analysis under the weight of his 
ethical theory, was perhaps natural. He was really try- 
ing to create a Theory of Legislation. But John Austin, 
the most prominent of his professional disciples, was a 
writer on law rather than a reformer, so in him the fault 



614 THE METHODS OF LEGAL SCIENCE 

is less excusable. Indeed, Austin pushed the habit fur- 
ther, for he must needs, after basing Law on Utility, 
identify Utility with the Law of God, in doing which he 
wanders off into the field of Natural Theology, and 
virtually repeats the error, which he had censured in 
the Roman lawyers, of assuming a Law of Nature as 
the basis of legal doctrines. So that Bentham and he 
are not unjustly described by the Germans as the au- 
thors of ' theories of Natural Law.' 

The second error of this school was that of relying 
too much upon current English notions and terms. 
They did not extend their view far enough either into 
the past, or over the legal systems of other times and 
countries. Bentham was, to be sure, chiefly occupied 
with schemes of reform, and did not profess to be a 
jurist. Austin deserves credit for having gone to Roman 
law, and sought in it those general ideas in which he 
found, or thought he found, English law lacking. Un- 
fortunately he did not fully master the Roman system ; 
and his overweening self-confidence betrayed him into 
a dogmatic censoriousness which was unbecoming even 
when he was exposing the errors of Blackstone, and 
was still less pardonable when he poured scorn on the 
legal luminaries of Rome. He did not perceive how 
deep some of the difficulties of legal theory lie, nor that 
there are some conceptions which it is safer to describe 
than to attempt to define. Hence his solutions are some- 
times crude, and his efforts, in themselves most lauda- 
ble, after exactitude, are apt to fail for want of subtlety. 
On several fundamental questions, such as the origin 
and essence of law and the nature of sovereignty, Au- 
stin is palpably wrong, and the most eminent of those 
later writers who started as his disciples have been 
largely occupied in disclaiming and correcting his mis- 
takes. 

The really great merit of the English Analytic School 
— a merit which was no doubt the main source of its 
influence, but which we are now in some danger of 



THE METHODS OF LEGAL SCIENCE 615 

forgetting — was its destructive energy. When Bentham 
began his career, case law, which reigned supreme, was 
by the legal profession generally, though of course not 
by such a man as Lord Mansfield, regarded as a mere 
string of precedents. No idea of philosophical arrange- 
ment, much less of literary finish, had begun to work 
upon the mass — 

' Quum neque Musarum scopulos quisquam superarat. 
Nee dicti studiosus erat.' 

Blackstone had indeed rendered the immense service 
of presenting within moderate compass and in graceful 
diction a complete view of the law. But he brought an 
insufficient grasp of history and philosophical principle, 
and still less an exact analysis, to his exposition, finding 
little to criticize and nothing to require amendment in 
rules and a procedure which half a century later few 
ventured to justify. This genial optimism, which was 
satisfied with any explanation, because it took the law 
as it stood to be the best possible, provoked Bentham. 
He writes with the air of one who does well to be angry ; 
and the tradition descended to Austin, by whose time 
the grosser scandals of the law were beginning to be 
removed. 

Between Bentham and Austin there is one conspicu- 
ous difference 1 . Bentham had not only a vigorous 
but a fertile and inventive mind, acute and ingenious, 
if sometimes warped or liable to become what is now 
called ' cranky.' He drops plenty of good things as he 
goes along. Austin is barren. Few or no suggestive 
thoughts are to be gathered where he has passed. His 
dry, persistent iteration, with its honest struggle after 
precision of terms, has a certain value as a mental dis- 
cipline, just as it tests one's powers of endurance to 
traverse a stony and waterless desert. An old Scottish 
lady consoled her friend, who had been dragged two 

1 Some excellent remarks on the intellectual characteristics of Bentham may be 
found in Mr. Leslie Stephen's English Utilitarians, vol. i (1901), 



616 THE METHODS OF LEGAL SCIENCE 

miles in a broken carriage by runaway horses, with the 
remark that it must have been a precious experience. 
But it is generally better to get one's discipline from 
books which also yield profitable knowledge. Of this 
there is in Austin nothing which may not nowadays be 
found better stated elsewhere. Most recent authorities 
are now agreed that his contributions to juristic science 
are really so scanty, and so much entangled with error, 
that his book ought no longer to find a place among 
those prescribed for students. 

How then, it may be asked, did it happen that Ben- 
tham and even Austin made a great impression upon 
some powerful minds in the last generation? Bentham 
did, because he was the first man who had the courage 
to denounce the artificialities, absurdities, and injustices 
of the unreformed law and procedure of England. No 
small part of the credit for the reforms which Romilly, 
Brougham, and their fellow workers carried out belongs 
to the man who had begun to call for them full thirty 
years before. Austin did, because in his time systematic 
legal study, and in particular legal education, were almost 
extinct in England. There was no legal teaching either in 
the old Universities, or in London. Though the grosser 
abuses of procedure had been removed, yet the subtle- 
ties of special pleading, as well as the long-winded and 
highly artificial intricacies of conveyancing, still flour- 
ished, and the law was regarded as a forest of details 
through which it was useless, even if possible, to drive 
paths for the student to follow. A disciple of the old re- 
former who brought to the novel enterprise of teaching 
and systematizing law a faith in the reformer's doctrines 
and a zeal for general principles, not unnaturally re- 
ceived the sympathy and the deference of the eager 
youth who believed, and rightly believed, that the prac- 
tice of the law, as well as its substance, would gain from 
the application of an independent and fearless criticism 
to it. By this service Austin has earned our gratitude, 
and deserves to be remembered with respect. So, though 



THE METHODS OF LEGAL SCIENCE 617 

the legal writings of Bentham and his disciples have 
now only a historical interest, we must not forget that 
they stimulated men to handle law in a new spirit, and 
that those whom they influenced had much to do with 
the establishment of the modern schools of law and the 
introduction of new methods of preparation for profes- 
sional work. 

The third method is the Historical. Instead of taking 
law as a datum, like the two other previous methods, 
it seeks to find how law sprang up and grew to be 
what it is. It sees in law a product of time, the germ 
of which, like the germ of the State, exists in the nature 
of man as a being made for society, and which develops 
from this germ in various forms according to the en- 
vironing influences which play upon it. Although law 
may not have been created by the State, it tends as it 
grows to become more and more closely associated with 
the State as a function of the latter's energy. Though 
its leading doctrines and its fundamental institutions 
are in some respects essentially the same in all civilized 
communities, still every given system is, in the histo- 
rian's view, for ever changing, growing, and decay- 
ing, both in its theory and in its substance, i.e. both 
in the ideas which create and underlie the legal con- 
ceptions and rules, and in the particular forms which 
those rules have assumed no less than in the institutions 
by which such rules are put in force. 

The utilities of the Historical Method as applied to 
any given system of law are two. 

It explains many conceptions, doctrines, and rules 
which no abstract theory or logical analysis can explain, 
because they issue, not from general human reason and 
the nature of things, but from special conditions in the 
country or people where the law in question arose. All 
law is a compromise between the past and the present, 
between tradition and convenience. Hence pure analy- 
sis, since it deals with the present only, can never fully 
explain any legal system. 



618 THE METHODS OF LEGAL SCIENCE 

This is not to say that the Historical method is a 
mere record of accidents. On the contrary it endeavours 
to eliminate, or at least to reduce to due proportions, 
that element of accident which results from the personal 
fancies and arbitrary volition of individual lawgivers. It 
conceives of national character and the circumstances 
of national growth as creative forces, whereof law is 
the efflux and expression, being itself a living organism, 
which in its turn helps to shape the mind of the people. 
Accordingly it shows that each nation, rather than in- 
dividual men, however potent, is, through what the Ger- 
mans call its Legal Consciousness (Rechtsbewusstscin) 
the maker and moulder of its law. 

A second merit of this method is that of indicating 
that the conceptions and rules which prevail at any 
given time, however obviously reasonable and useful 
they may appear to the generation now living, will not 
_always appear so, but must undergo the same change 
and decay which previous rules have experienced. It 
teaches us never to condemn the past because it is not 
the present, nor ever to forget when we praise the pre- 
sent that it too will some day be the past. This is one 
of those truisms which men are always forgetting to 
apply, and of which legislators in particular need to be 
often reminded. 

The risk principally incidental to the Historical 
method is, that it is apt to lapse, either into mere anti- 
quarianism on the one side, or into general political and 
social history on the other. Some charge it with retard- 
ing improvement by justifying the past. Those who 
oppose reforms have often so abused it : just as those 
abuse it who when they palliate crimes by dwelling on 
the ' so-called conditions of the age ' attenuate all moral 
distinctions. ' In judging Phalaris,' a modern lecturer 
is reported to have said, ' we must not forget that the 
moral standard of Phalaris' time is not that of our own.' 
Nevertheless History, when she explains and is sup- 
posed to justify the past, justifies it as the past, and must 



THE METHODS OF LEUAL SCIENCE 619 

not be deemed to defend it for the purposes of the 
present. 

It is, however, a weak point in the Historical method 
as applied to the science or philosophy of law that it is 
more applicable to the law of any particular country 
than to the theory of law in general, for the details of 
legal history vary so much in different countries that 
immense knowledge and unusual architectonic power 
are needed to combine their general results for the pur- 
poses of a comprehensive theory. Indeed, I doubt if 
any man of the requisite capacity (unless perhaps Rudolf 
von Ihering) has yet produced a treatise on jurispru- 
dence or the philosophy of law by means of this me- 
thod. The thing, however, may be done, and so will 
doubtless be done some day. Everything happens at 
last. 

Lastly, there is the so-called Comparative Method, 
which is the youngest of the four. It is concerned with 
space as the Historical method is with time. It col- 
lects, examines, collates, the notions, doctrines, rules, 
and institutions which are found in every developed 
legal system, or at least in most systems, notes the 
points in which they agree or differ, and seeks thereby 
to construct a system which shall be Natural because 
it embodies what men otherwise unlike have agreed in 
feeling to be essential, Philosophical because it gets 
below words and names and discovers identity of sub- 
stance under diversity of description, and Serviceable, 
because it shows by what particular means the ends 
which all (or most) systems pursue have been best at- 
tained. The process is something like that which a 
Roman Praetor might have followed in constructing 
the general or theoretical part of his his gentium 1 . If 
indeed we are to suppose the Praetor ever really did 
study the laws of the various neighbours of Rome, he 
was one of the founders of this method, though to be 
sure the Roman commissioners, who are said to have 

1 See Essay XI, p. 571 sqq. 



620 THE METHODS OF LEGAL SCIENCE 

been sent out to examine the laws of other countries be- 
fore the Decemviral legislation, preceded him in this 
attempt. 

The comparative science of jurisprudence appears, 
however, in two forms. One of these must, like the 
science of comparative grammar, crave the aid of his- 
tory, for the study of the differences between two sys- 
tems becomes much more profitable when it is seen how 
the differences arose, and this can be explained only by 
social and political history. This form may be deemed 
an extension of the historical method, which it resem- 
bles in helping us to disengage what is local or accidental 
or transient in legal doctrine from what is general, es- 
sential, and permanent, and in thereby affording some 
security against a narrow or superficial view. It is really 
an historical study of law in general ; and, like history, 
it is not directed to practical ends. 

The other form, though it cannot dispense with the 
aid of history, because the differences between the laws 
of different countries are not explicable without a know- 
ledge of their sources in the past, has a narrower range 
in time, being directed to contemporary phenomena. It 
has moreover a palpably practical aim. It sets out. by 
ascertaining and examining the rules actually in force 
in modern civilized countries, and proceeds to show by 
what means these rules deal with problems substantially 
the same in those countries. For example, it takes such 
a topic as the liability of an employer for the acts of 
his servant, or the structure and management of in- 
corporated companies, compares the enactments it finds 
in France, in Germany, in the British Colonies and in 
the States of the American Union, points out their dif- 
ferences, and seeks to determine which mode of handling 
the difficulties of the subject is the simplest and most 
likely to work well in practice. The next step would be 
to test each legislative experiment by the results it has 
secured in each country. Here, however, the task be- 
comes more difficult, and requires qualities in the in- 



THE METHODS OF LEGAL SCIENCE 621 

vestigator which are not altogether those needed by the 
jurist. 

What the Comparative method does for legal training 
and legal theory it does in its first mentioned and his- 
torical form. Ample as the materials may appear, they 
are really somewhat scanty, because there have been in 
the world not many distinct types of legal system or doc- 
trine, and few of these have reached a high development. 
Of the ancient and long since departed systems little 
is left, and that little not very helpful for this particular 
purpose. There are some fragments of old Celtic law 
from Ireland, with larger fragments of old Teutonic 
law chiefly from Iceland, Norway, Friesland, and the 
Carolingian Empire, some old Slavonic land and family 
customs, besides what may be gleaned from the ancient 
books of India, and what has recently been discovered 
in Egypt, in the clay tablets of Babylon, and in inscrip- 
tions among the ruins of Greek cities. Of the modern 
systems, on the other hand, there are besides those of 
Teutonic origin, practically only three worth mention- 
ing : Hindu law, which has been fully developed only in 
two or three directions ; Muhamadan law, which is de- 
ficient on some of the sides we should deem the most 
important ; and the Roman law, which now covers all 
those parts of the civilized world that are not covered 
by English law, including the continent of Europe and 
the colonies of European nations (some British colonies 
as well as French, Dutch, German, and Portuguese) 
except those which lie in the temperate parts of North 
America and in Australasia. So far, therefore, as the 
doctrines of law in its civilized and developed forms, 
suited to a progressive modern nation, are concerned, 
the comparative method is virtually restricted to a com- 
parison of English and Roman conceptions and rules. 
And the fundamental ideas and principles of English law 
itself have been in some departments so much affected 
by Roman law that they can hardly be treated as inde- 
pendent material for comparative study. 



622 THE METHODS OF LEGAL SCIENCE 

It is when we leave the field of legal philosophy and 
jurisprudence in general for the field of particulars 
and details that the practical value of the Comparative 
method begins. An examination of the various ways 
in which economic and social problems have been dealt 
with in recent times, and in which commerce has been 
regulated and crime checked, is in the highest degree 
interesting and useful. But that is not quite the kind 
of legal study which we are here primarily engaged in 
considering. No doubt the way in which questions of 
liability and responsibility and negligence, to take a 
familiar example, are dealt with in the laws of different 
countries, does throw light upon general juristic con- 
ceptions and upon the lines which Courts ought to follow 
in developing these difficult branches of any concrete 
system. But on the whole, it is rather to the province of 
legislation than to that of law that this part of compara- 
tive jurisprudence belongs ; and, as has been already ob- 
served, the utility for practical guidance of the results 
which an examination of the legislation of various civi- 
lized states supplies is somewhat reduced by the difficulty 
of determining how much of those results, be they good 
or evil, is in each case attributable to legal enactments, 
how much to the social and economic environment in 
which the enactments work. 

If we are to attempt to estimate the respective worth 
of these four methods for the creation of a theory or 
philosophy or science of law, we must begin by settling 
for whom such a science is designed and to whom it 
will be useful. 

Three kinds of persons will primarily and directly 
profit by having such a science built up on the best lines, 
viz. the teachers and students of law, the practitioners 
of law, including both advocates and judges, and the 
makers of law, i.e. legislators and draftsmen. Legis- 
lators, however, whether monarchs or members of legis- 
lative assemblies, have in modern countries seldom 
sought to acquire any specifically legal knowledge, 



THE METHODS OF LEGAL SCIENCE 623 

though some persons who sit in the legislatures of 
modern countries usually happen to possess it. Thus it 
is rather of the two other classes we must think, that is 
to say, of the value of a scientific theory for facilitating 
the acquisition of legal knowledge by the learner, and of 
its value in helping the practitioner (whether advocate 
or judge) to apply it with accuracy, perspicacity, inge- 
nuity, and promptitude. In proposing this test I do not 
mean to ignore the importance which belongs to the 
philosophy of every great branch of learning, as an end 
in itself, apart from all practical benefits to be_ derived 
from it. That importance is, however, as the Romans 
say of freedom, res inacstimabilis, a thing too precious to 
receive a valuation in any recognized currency. Practi- 
cal utility, on the other hand, can be tested and valued, 
so it is to the practical utility of this science in making 
men thorough masters of law that we had better confine 
our view. 

All the four methods are legitimate and capable of 
being applied in a truly scientific spirit. None therefore 
is to be either neglected or disparaged. If, however, 
we judge them by their fruits, we shall find that the His- 
torical has given the best crop. The Metaphysical tends 
to be not merely abstract but vague and viewy. Of the 
treatises in which it has been employed the best are 
indeed not to be deemed empty. Scattered through not 
a few of them one finds acute and suggestive remarks. 
They subserve a sound analysis by their treatment of 
ethical problems : and sometimes they present what are 
really considerations of practical expediency disguised 
in the robes of sacerdotal transcendentalism. The diffi- 
culty which forbids many among us to give more study 
to these books is the shortness of life. Much talent, 
sometimes of a high order, has gone to the making of 
them. But they are, and not solely the German ones, 
terribly hard reading. 

The Analytic method keeps much nearer to the reali- 
ties of law, and is serviceable for the clarifying of our 



634 THE METHODS OF LEGAL SCIENCE 

ideas. Its English votaries have, however, generally 
wanted breadth of view, and have tried to force defini- 
tions on facts, instead of letting the facts prescribe the 
definition. They have been unequal to the subtlety of 
nature (for law also is a product of nature), and this 
largely because they have neglected the materials for 
induction which history supplies. 

The Comparative method (as already observed) suf- 
fers from a lack of material for the purposes of a philo- 
sophy of law in general, and becomes in practice an 
' examination of Roman conceptions with the help of light 
from England in those departments of English law which 
t have been least influenced by Rome 1 , and of some 
glimmers from the East and from the laws of ancient 
European peoples. 

The Historical method, on the other hand, may at 
least be relied upon to give us facts. Facts are always 
helpful, when men have been trained to use them. It 
is the business of historical criticism to impart this 
training, just as it is the business of logic to teach men 
how to analyse a current conception and to distinguish 
the various senses in which a term may be used. 

If the question is propounded — How should these 
four methods, or some or one of them, be used for the 
purpose of legal instruction and the formation of a legal 
mind and power of handling legal problems, may we not 
answer it in some such way as the following? 

The philosophy or theory of Law should begin by 
determining the place of law among the human or moral 
as opposed to the physical sciences, and should examine 
its relations to Psychology, Ethics, Politics, and Eco- 
nomics; As this inquiry will start from a general survey 
of the nature of man and the general ideas he forms, it 
will fall within the scope of what we have called the 
Metaphysical method. 

1 An example of how stimulating- this may be made is furnished by the treatment 
of Possession in the acute and learned lectures on the Common Law of Mr. O. W. 
Holmes (now Chief Justice of Massachusetts). 



THE METHODS OF LEGAL SCIENCE 625 

The notions and conceptions which are essential to 
law and lie at the bottom of all systems will then be 
investigated, and particularly the following fundamental 
conceptions — Right, Obligation, Duty, Liability, Law, 
Custom. Some will prefer to deduce these conceptions 
by the metaphysical method from the phenomena of 
human nature and the principles that connect these 
phenomena. Some will prefer to start from current 
notions as embodied in current language, and to reach 
correct definitions by analysing the meaning conveyed 
by each term and setting out the facts it is intended to 
cover. Whichever method be adopted — and there is less 
real difference between the two than the description 
here given of them might seem to convey — the Histori- 
cal method ought to accompany and aid the application 
of either. For although the object of the inquiry is to 
obtain a statement which shall be adequate and exact 
for the science of law as a fully developed product of 
civilized societies, we always need to be warned by His- 
tory against assuming that our present notions are suf- 
ficiently wide, and sufficiently possessed of the elements 
of necessity and permanence to secure that our proposi- 
tions shall be generally true and enable our definitions to 
hit what is really essential. The once popular defini- 
tion of law as a Command of the State is an instance of 
the danger of forgetting the past, for the fact that it 
would have been palpably untrue in certain stages of 
political development shows that it does not rest upon 
a sufficiently broad foundation. 

From these general conceptions the inquiry will 
advance to a second order of ideas and categories, 
more specifically and purely legal, such as Ownership, 
Possession, Contract, Tort, Marriage, Guardianship, 
Slavery, Conveyance, Pledge, Lien, Prescription, In- 
heritance, Sale, Partnership, Bailment, Crime, Fraud, 
Negligence. Here we come still closer to the rules of 
concrete systems. A German metaphysician may no 
doubt deduce the abstract idea of Ownership or Con- 
40 



626 THE METHODS OF LEGAL SCIENCE 

tract from the general principles he has previously laid 
down in his speculative treatment of the subject. A So- 
cratic analyst may by testing current terms and phrases, 
and unfolding the meanings involved in these terms, 
arrive at definitions of them. But the examination of 
the conceptions and the definition of the terms must be 
mainly based on a study of the facts which in one or 
more actual legal systems these conceptions cover. In 
this study the Historical method can render effective 
help, because the rules actually regulating in any given 
system all the relations denoted by these terms are 
sure to have something irregular or apparently arbitrary 
about them, something which pure reason would not 
have suggested. The forms, for instance, which Pos- 
session, Inheritance, and Pledge have taken both in 
Roman and in English law have many peculiarities ex- 
plicable only by tracing the causes that produced them. 
The definition which the jurist will propound for the 
purposes of his science of law in general will avoid such 
peculiarities, but he cannot afford to be ignorant of them 
or of their origin, else he may miss some side of their 
significance. 

Although in theoretical Jurisprudence the part of His- 
tory is on the whole secondary, it is nevertheless indis- 
pensable. For History shows us cases where things 
that are really different go by the same name, and other 
cases where things that are really the same go by dif- 
ferent names, cases where a rule has been extended be- 
yond, and others where it has not been extended to, its 
proper or natural range, and thus it guides the jurist, 
explaining the facts on which he has to found his theory. 
The Comparative method renders a similar service in 
preventing him from laying too much stress on the spe- 
cial shape in which a doctrine or institution appears in 
the particular system whose history he is studying, and 
generally in pointing out identity of substance or effect 
coupled with diversity of form or expression. 

All the above-named categories or conceptions or 



THE METHODS OF LEGAL SCIENCE 627 

institutions, together with some few others of minor im- 
portance, belong to the science of law in general, because 
they appear in every fully developed system. When, 
however, we get more into particulars, it becomes in- 
creasingly difficult to lay down general doctrines or 
suggest general rules applicable to all communities, be- 
cause details must be settled with reference to the needs 
and usages of a given community, and that which suits 
one would hardly suit another. Here therefore the 
Philosophy or Science of Jurisprudence will bid fare- 
well to the student, handing him over to those who 
teach the law of England or Scotland or France or 
Russia, as the case may be, and bidding him remember 
to apply the general principles he has mastered to the 
criticism of the details which he will thenceforth be oc- 
cupied in learning. 

The principles which constitute the Science or Theory 
of Law in general can be adequately stated within mode- 
rate compass. The subject is not a large one, unless a 
writer spreads himself out in ethics on the one hand or 
accumulates historical details on the other. Nor is it 
in the knowledge to be given that the value of the study 
will chiefly lie ; it is rather in the training to use the right 
methods in the right way. Before he is plunged into 
details, the student ought to acquire the habit of looking 
for principles, of analysing terms, of perceiving that legal 
doctrines have all had their growth from rude begin- 
nings and will change further. These aptitudes will 
serve him when he enters the domain of technical law, 
which is a domain less of Reason than of Authority. 
And authority, though it may be called the reason of 
the past, rules not because it is reason but because it 
has the sanction of a past pronouncement. 

Arguments founded on the reason of things or on 
the tendency of historical development will avail nothing 
in practice against a positive rule, whether contained in 
a statute or deducible from a decided case. Seldom in- 
deed will a judicious advocate invoke either Reason or 



628 THE METHODS OF LEGAL SCIENCE 

History, unless perhaps in arguing before the House 
of Lords a point whereon little authority exists. But 
in reasoning from decided cases, and even in interpret- 
ing statutes, his mastery of the methods already de- 
scribed will stand him in good stead. Nor is it to be 
forgotten that the judge and the writer of text-books 
have, each of them, important functions in guiding the 
development of the law. When a question is to be dealt 
with regarding which authority is scanty or the decisions 
are conflicting, a jurist belonging to either of these 
classes may apply the philosophic habit of mind formed 
by his theoretic studies to the task of finding a solution 
which shall be sound and durable, because conformable 
to principle, and standing in the true line of historical 
development. 

Let us return, now that we have sketched a scheme 
for a Theory or Science of Law in general, to the ques- 
tion whence we started, whether the Romans, who never 
produced any such theory or science, suffered from the 
want of it. If they did suffer, why do we praise their treat- 
ment of law, and why in particular do we call it a philoso- 
phical treatment ? If they did not suffer, what becomes of 
the importance of a Science or Theory to the modern 
lawyer? Why should he trouble himself about it at all? 

What is it which we admire in the Roman jurists, and 
in the Roman law generally? 

The characteristic merits of the Roman law — and I 
speak of course only of the Private Law, for Public or 
Constitutional Law must be considered apart — are its 
Reasonableness and its Consistency. It is pervaded by 
a spirit of good sense. Except in two departments, 
those of the Paternal Power and of Slavery, its rules 
almost always conform to considerations of justice and 
expediency. Very little needs to be excused as the re- 
sult of historical causes. Even Slavery and the P atria 
Potestas, the former universal in the ancient world, the 
latter so deep-rooted among the Romans that it could 
never be altogether expunged, are in the later centuries 



TEE METHODS OF LEGAL SCIENCE 629 

so steadily and carefully mitigated that most of their 
old harshness disappears. The moral tone of the law is, 
take it all in all, as high as that of any modern system ; 
and in some few points higher than our own. By its 
Consistency I mean the harmony and symmetry of its 
parts, the maintenance through a multiplicity of details 
of the leading principles, the flexibility with which these 
principles are adapted to the varying needs of time, 
place, and circumstance. So the excellence of the jurists 
resides in their clear practical sense, in the air of enlight- 
enment and of whaf "may be called intellectual urbanity 
which pervades them. Most of them express themselves 
with a concise neatness and finish which gives us the 
pith of their view in the fewest and simplest words. 
They dislike what is arbitrary or artificial, taking for 
their aim what they call elegance (elegantia iuris), the 
plastic skill (so to speak) in developing a principle which 
gives to law the character of Art, preserving harmony, 
avoiding exceptions and irregularities. Yet they never 
sacrifice practical convenience to their theories, nor does 
their deference to authority prevent them from con- 
stantly striving to correct the defects of the law as it 
came down from their predecessors. 

In these respects the Roman law and the Roman 
lawyers of the classical age (the first two and a half 
centuries of the Empire) may be deemed more philo- 
sophical than our own law or its luminaries. Our law, 
equal to the Roman in its sense of justice and in its 
subtlety, and in some respects distinctly superior to the 
Roman, is also a far larger and more complex structure, 
as it has to regulate a far more complex society. But 
it has less symmetry and consistency, more intricacy 
and artificiality, than the Roman: and few of our legal 
writers can be placed on a level with the greatest of 
the classical jurists. Compare Lord Coke for instance, 
or Lord St. Leonards, with Papinian or Gaius. Lord 
St. Leonards was a man greatly admired by the pro- 
fession, and his books secured an authority unsurpassed, 



630 THE METHODS OF LEGAL SCIENCE 

if indeed equalled, by any other legal writings of the 
century 1 . His knowledge was immense, and it was 
minute. His treatises show the same acuteness and in- 
genuity in arguing from cases which his forensic career 
displayed. But these treatises are a mere accumulation 
of details, unillumined and unrelieved by any statement 
of general principles. In literary style, and no less in the 
cast and quality of his intellect, he is harsh and crabbed, 
but his frequent obscurity must be due less to a want 
of clear thinking than to the fact that our legal text- 
books have so rarely aimed at excellence of literary 
form that this famous case-lawyer had no ideal of lucidity 
or finish before him. Lord St. Leonards is not an ex- 
ceptional instance. That sound and very learned legal 
author whom the early Victorian era so much valued, 
Mr. John William Smith (Smith's Leading Cases and 
Contracts), illustrates the same tendencies. 

Now the merits we have noted in the Roman law and 
the Roman jurists are largely merits of method. To set 
forth the causes to which the excellence of the Roman 
law is ascribable would involve a long digression, and I 
have dealt with those causes elsewhere. So let us con- 
fine ourselves to the jurists. They reason and they 
write as men who have been thoroughly trained, who 
have been imbued with a large and liberal view of law, 
who have philosophy and analysis and the sense of his- 
torical development equally at their command. They 
are endowed in fact with the qualities which, as we have 
been led to think, a course of the Theory or Science of 
Law ought to impart. How then did they acquire these 
qualities ? 

1 Lord Mansfield in the eighteenth century or Lord Cairns in the nineteenth, 
perhaps the two most philosophical minds that have adorned the English bench, 
would doubtless, if they had written on law, have shone as legal writers far more 
than Lord St. Leonards ; and it is of course true that in order to have a fair com- 
parison our great judges ought to be thrown into the English scale. But the form 
in which their wisdom appears makes it less available than the form in which we 
have that of the Romans. So too Lord Justice Mellish, the most solid and cogent 
reasoner of his time, and Lord Bowen, the most subtle and ingenious, would doubt- 
less have produced admirable work had not their time been absorbed by their fo- 
rensic and judicial duties 



THE METHODS OF LEGAL SCIENCE 631 

First, by the study of philosophy. Though our data 
scarcely justify a general statement, it seems probable 
that many of the jurists, especially of such as grew up at 
Rome, received instruction in Greek philosophy. It has 
been suggested that not a few professed the doctrines of 
the Porch. Anyhow the conception of Nature as a force 
or body of tendencies prompting and guiding the pro- 
gress of law was familiar to them, and appears to have 
influenced their ideas. Then by a searching and sifting 
of legal terms and maxims, what may be called an exe- 
tastic method, they sharpened the edge of their minds 
and gave clearness to their notions. Both the philo- 
sophical and the rhetorical training given to young men 
fostered the habit of analysis ; and the disputations which 
went on among the lawyers, stimulated by the contro- 
versies of the two great schools, Sabinians and Procu- 
lians, doubtless trained men in dialectic, wherein the 
framing and the dissecting of definitions play no small 
part. The history of law does not seem to have been 
taught, and regarding some parts of their earlier legal 
history the Romans of the later Empire may have 
known less than we know to-day. The sketch taken 
from Pomponius which we have in the beginning of Jus- 
tinian's Digest is uncritical, and in many points defective. 
But these jurists, from their study of the development 
of equitable principles through the action of the Praetor, 
had a training in historical method which must have been 
eminently profitable. During the last two centuries of 
the Republic and the first century of the Empire, the 
law of Rome was being constantly amended and de- 
veloped far less by the comparatively rough method of 
legislation than by the delicate methods of interpreta- 
tion, discussion, and the issuing of praetorian Edicts, 
and developed in such wise that the new had always ar- 
rived before the old departed, so that the process of 
evolution was always before their eyes, and its lessons 
familiar to them. 

Finally, the administration of justice by the Praetor 



632 TEE METEODS OF LEGAL SCIENCE 

peregrinus, who doubtless based himself mainly upon 
the commercial usages of the merchants who from vari- 
ous quarters resorted to Rome, and still more the issu- 
ing of provincial edicts by the magistrates who were 
sent to rule the provinces according to systems which 
combined some Roman rules and principles with other 
rules which belonged to the particular province, sup- 
plied abundant materials for observing in what points 
the special and peculiar law of Rome agreed with or 
differed from the laws of other peoples and states 1 . 
The jurists were thus led, not by theory, but by the 
practical needs of the case, to apply and to profit by the 
Comparative method, no less than by the three other 
methods above enumerated. And accordingly they did 
in fact obtain, without any paraphernalia of a Philo- 
sophy or Science embodied in separate treatises or os- 
tentatiously taught as a separate subject, those very 
gifts and aptitudes which a systematic and enlightened 
scheme of legal education ought to confer. They did 
not set out with abstractions, like our German and Scot- 
tish friends. They did not, like Bentham and Austin, 
crack a set of logical nuts, in the effort to divide and 
define the matter and the leading conceptions of law. 
But they applied to the handling of their own concrete 
rules and problems a mastery of general principles and 
a love for harmony and consistency which are essentially 
philosophical. They were pervaded by the sense of his- 
toric growth and change, for had they not before them 
the relations of the old and the new in many institutions 
— the development of Formula beside Legis Actio, of Ius 
Gentium beside Ius Civile, of Bonorum possessio beside 
Haereditas, of Longi temporis pracscriptio beside Usucapio? 
The one thing in which it may be said that a systematic 

1 There was practically only one set of laws or customs belonging' to highly civi- 
lized communities which the Romans could compare with their own law, those, 
namely, which they found in the various Greek cities. These laws and customs, 
though varying a good deal in detail, from city to city, seem to have borne a fa- 
mily likeness to one another. The laws of the Italic cities were probably on the 
whole similar to those of Rome herself. But the customs of the Carthaginians, of 
the Syrians, and of the Egyptians, had many peculiar features. 



THE METHODS OF LEGAL SCIENCE 633 

science of law might have helped them was the arrange- 
ment and distribution of topics. For this they certainly 
cared little and did little. But the taste for systematic 
arrangement was never strong in the ancient world. 
Perhaps the modern appreciation of it dates back to the 
scholastic philosophy of the Middle Ages, which spent 
much thought on what the logicians called Division. 
Perhaps it has been reinforced by the more recent pro- 
gress of Natural History, which furnishes in the clas- 
sification of the animal and vegetable kingdoms the 
grandest example of orderly schemes of distribution 
based on scientific lines. 

This excellence of the Romans in the sphere of con- 
crete law confirms the view we were led to take that the 
contents of a Philosophy or Science of Law in general 
are not large, being indeed confined to the defining of 
the relation of Law to Ethics and other cognate branches 
of philosophy, and to the examination of some funda- 
mental legal conceptions, important no doubt, but not 
very numerous. The solid and essential value of legal 
science begins in the manipulation of the material pre- 
sented by an actual system of law, in the moulding of 
the old customs so as to reconcile them with the always 
changing needs of the people. And this has been the 
doctrine and practice of the greatest foreign masters of 
the Roman law in modern times. It was the doctrine 
of Savigny, who opposed his historical method to the 
abstractions of the contemporary Hegelians, and it pre- 
vailed in the struggle. I remember the way in which it 
was conveyed to me by one of the greatest of Savigny's 
school, Dr. Karl Adolf von Vangerow, to whose brilliant 
and stimulating lectures I listened at Heidelberg, now 
many years ago. Inspired by my Scottish and Oxford 
training with the notion that in order to study a sub- 
ject rightly one must begin with its metaphysics, I asked 
the professor, on one of the days when his students were 
permitted to call on him, what book on the Philosophy 
of Law (Rechts philosophic) I ought to read. He raised 



634 THE METHODS OF LEGAL SCIENCE 

his eyebrows till they seemed to reach the top of 
his head, and said with a deprecating wave of his hand, 
' I doubt whether that kind of reading will help you 
with your legal studies. I see little use in it. But if 

you really do want to study such a topic well, there is 

the Naturrecht of my colleague Herr Dr. Roder : you 
can look at it.' Nearly all the jurists to whom the de- 
velopment of modern Roman law in the nineteenth cen- 
tury in Germany has been due have taken a similar 
view, and have spent their powers either on the same 
questions as those which occupied the Roman sages or 
on the application of Roman principles and doctrines 
to the phenomena and conditions of modern times, and 
especially of modern commerce. They have been philo- 
sophical in their use of the analytic and historical 
methods, philosophical, that is to say, as compared with 
Lord Coke or Lord St. Leonards, and they have greatly 
improved on the division and classification of topics 
which we find in the Roman books. But they have 
troubled themselves about the abstract philosophy of 
law just as little as those two famous judges, or as those 
august Romans who divided their time between the com- 
position of legal treatises and advising the Emperor on 
the ordinances which he issued for the whole civilized 
world. 

Not a few of the great Roman jurists (including Julian, 
Papinian, and Ulpian) sat in the imperial consistory, and 
were practically not only judges of the highest Court of 
Appeal but also legislators. An estimate of their scien- 
tific merits must include this branch of their activity, 
whether as settling the form of decrees to be passed by 
the Senate, or as drafting enactments to be issued in 
the name of the Emperor. For legal science is not 
merely either expository on the one hand, or on the 
other dispensatory and corrective, securing to each 
what is his, but is also Constructive and Ameliorative, 
framing rules under which society may advance steadily 
and smoothly, may get rid of obsolete doctrines, may 



THE METHODS OF LEGAL SCIENCE G35 

find new facts adequately dealt with under new rules, 
it was a great advantage for the Empire, and one which 
furnished some compensation for the absence of repre- 
sentative legislatures that the business of law-making 
lay in the hands of competent legal experts. Legislation 
presents itself to us as being above all things an expres- 
sion of the will of the people, who know where the shoe 
pinches them, and have the general interest, not that of 
a monarch or a privileged class, in their minds. Yet a 
wise despot, with pure purposes and a command of the 
best legal advice, may be expected to legislate in the 
general interest, and most of the legislation of the em- 
perors during the first three centuries, though it was 
often misguided in the sphere of financial administra- 
tion, was conceived in the interest of the population at 
large. What was specially due to the lawyers who ad- 
vised the Emperor was the policy followed in amending 
the general private law, and in bringing it into a more 
orderly and consistent condition. In this respect they 
vindicated their claim to be truly scientific. The work 
of law reform went on upon broad principles, unhasting 
and unresting, till the anomalies and injustice of the old 
system had been almost entirely removed. Yet there 
was left for a long time in the provinces a local variety 
of law which corresponded to and respected the local 
needs and sentiments of the populations. No passion 
for a rigid uniformity seems to have blinded the advisers 
of the Emperor to the truth that the first business of law 
is to subserve the well-being of the people and to win 
their confidence as well as command their obedience. In 
this respect also they were not merely ' priests of jus- 
tice,' as they liked to call themselves, but also worthy 
servants of science. The Roman' Empire maintained 
itself in the East for more than eleven centuries after 
the last of the classical jurists. In the West its influence 
survived its political existence, and its law in particular 
became the foundation of that which came to prevail 
over Continental Europe. As it was largely owing to 



636 TEE METEODS OF LEGAL SCIENCE 

the strength derived from its legal and administrative 
structure that the Eastern Empire lived so long, so the 
permanence of the Roman law in the West is some proof 
of the attachment of the people to it, and so of its in- 
trinsic merits. Both facts are alike a tribute to the 
scientific character of the system and to the scientific 
genius of the men who moulded it. For no system could 
have passed through the changes which the East under- 
went, or survived the storms which broke upon the 
West, save one which by the dominance of clear and 
broad principles and the symmetrical development of 
rules from those principles had become at once intelli- 
gible, flexible, and consistent. 

Let us see what are the conclusions to which we 
have, by this somewhat devious course, been led. 

I. There are four chief methods of studying law — 
the Metaphysical, the Analytical, the Historical, and the 
Comparative. 

II. Each of these has its proper sphere and its dis- 
tinctive value, even if the two latter are of most general 
practical service. 

III. All four ought to find a place in a complete 
scheme of legal training. 

IV. The two former are applicable only to the rudi- 
ments and to some particular parts of the subject, the 
two latter are profitable all through it, and especially so 
when they can be combined. 

V. The Roman jurists pass so lightly over the theo- 
retical side of law that the first method supplies them 
with little more than a few general phrases. Although 
their definitions are the result of analysis, they do not 
formally or of set purpose employ the second. They use 
the Historical method freely, though almost uncon- 
sciously. At one stage in the growth of their law they 
applied to some extent the Comparative method, being 
led to it by the facts they had to deal with. But they 
seldom mention any law but their own. 

VI. The Romans, though saying little about the broad 



THE METHODS OF LEGAL SCIENCE • C37 

aspects or so-called Philosophy of Law, do in fact pur- 
sue it in a philosophic spirit ; and to this spirit the ex- 
cellence of their system is largely due. 

VII. Their example shows us that it is not the effort 
to discuss law in a metaphysical or abstract way that 
makes a body of law truly philosophical, but rather the 
power of so framing general rules as to make them the 
expression of legal principles, and of working out these 
rules into their details so as to keep the details in har- 
mony with the principles. 

In other words, it is Reasonableness, Simplicity, Self- 
consistency that make the excellence of a legal system, 
and the best methods of study are those which attune 
the lawyer's mind to seek after these qualities, and which 
enable him to hold a middle course between viewiness 
and the pursuit of an impossible perfection on the one 
hand and bondage to the letter on the other. 



XIII 

THE RELATIONS OF LAW AND 
RELIGION 

THE MOSQUE EL AZHAR 

To the modern European world Religion and Law 
seem rather opposed than akin, the points of contrast 
more numerous and significant than the points of re- 
semblance. They are deemed to be opposed as that 
which is free and spontaneous is opposed to that which 
is rigid and compulsive, as that which belongs to the 
inner world of personal conscience and feeling is op- 
posed to that which belongs to the outer world of social 
organization and binding rights. The one springs from 
and leads to God, who is the beginning and the end of 
all religious life ; the other is enforced by and itself 
builds up and knits together the State. Even where the 
law in question is the revealed Law of God the contrast 
remains. The efforts which we find in the New Testa- 
ment, and especially in some of St. Paul's Epistles, to 
reconcile the law delivered to Israel with the dispensa- 
tion of the New Covenant, all point to and assume an 
antagonism. Grace, that is to say, the spontaneous 
goodness and favour of God, is felt as the antithesis to 
the Law; and it is only when human nature has been 
brought into complete accord with God's will that the 
antithesis vanishes, and we have the Perfect Law of 
Liberty. 

This law of liberty, moreover, is not positive law at 



THE RELATIONS OF LAW AND RELIGION 639 

all, but supersedes that law ; for when all men have been 
so made perfect, the need for human law has ceased be- 
cause their several wills, being in accord with the will 
of God, must needs be also in accord with one another. 

This antagonism of Law and Religion has been con- 
spicuous in the relations to each other of the lines of 
thought followed by the ministers of religion on the one 
hand and the students or practitioners of law on the 
other. In the theology of the Reformers of the six- 
teenth and two following centuries Legalism is a term 
of reproach and is contrasted with the freedom of the 
Gospel. Readers of the Pilgrim's Progress will remem- 
ber the part played in it by old Mr. Legality. The clergy 
have been apt to dislike lawyers, to accuse them of 
cramping the freedom of the Church, and of desiring 
to bind it in State fetters. Erastianism, of which some 
lawyers and statesmen have been known to be proud, 
is a name of dark reproach on ecclesiastical lips, while 
the legal profession on its part, though it has always had 
to yield precedence to the other gown, conceives that 
the Church needs to be strictly controlled, gladly seizes 
occasion for limiting the action of her ministers, often 
suspects them of trying to evade or pervert the law, 
and is prone to bring accusations, more or less railing, 
against them, as seeking to compass their (possibly ex- 
cellent) ends by irregular or even illegal methods. 

But in earlier times, and in many countries, the two 
lines of thought, the two branches of learning, the two 
professions, whether as teaching or as practising profes- 
sions, were either united or deemed to have a close 
affinity. In the lowest forms of organized society, such 
as we find among the aborigines of Canada and South 
Africa, the first kind of profession that appears is usually 
that of the wizard or practitioner of magic, and the 
rudiments of a priest are developed out of the medicine 
man, who represents the most rudimentary form of the 
physician. But in this stage of progress there is no 
religion properly so called, and the usages that prevail 



640 THE RELATIONS OF LAW AND RELIGION 

and which are the material out of which law will grow, 
are too few, too rude, and too often interrupted by 
violence, to form a system of settled and harmonized 
rules. When, however, Religion and Theology begin 
to emerge from the superstitions of the savage state, 
and when custom, already settled, and growing more 
complex with the progress of culture, has enabled civil 
society to organize itself in institutions, Law and Theo- 
logy are usually found in close affinity. Law everywhere 
begins with Custom. Now many of the Customs which 
form Law are concerned with worship, because the rela- 
tions they regulate are relations depending on religion. 
The Family is a religious as well as a natural organism, 
for it is often sacred, and in many peoples is held to- 
gether by the common worship which its members owe 
to the spirits of their ancestors. Hence the maxims that 
regulate marriage, and the relation of parents to chil- 
dren, and the devolution of property, have a religious 
basis, and are precepts of religion no less than rules of 
law. To take vengeance for the killing of a near rela- 
tive is a duty which the pious son or brother owes to 
the ghost of the slain ; while on the other side the 
slaughter has created a legal right the enforcement of 
which, by compelling the payment of a proper compen- 
sation to be exacted from the slayer or his kinsfolk, will 
also satisfy the religious obligation. Other relations 
of men to one another not primarily religious become 
so by being placed under supernatural protection. 
Where a promise or agreement is to be rendered spe- 
cially binding, the party engaging himself takes an oath 
invoking the Divine Power, and perhaps takes it at a 
shrine, or (as in Iceland) on a temple-ring, or (as in the 
Middle Ages) on the relics of a saint. These contracts 
are not confined to private affairs. Treaties are made 
in the same solemn way. Compacts such as that for 
the single combat of Paris and Menelaus in the Iliad 1 , 

1 II. iii. 276-280. The appeal in this case is to Zeus, to the Sun, to the Rivers and 
to the Earth. 



THE RELATIONS OF LAW AND RELIGION 641 

are placed under the sanction of the gods by a formal 
appeal to them as witnesses. And when a person who 
had violated such an oath dies suddenly, his death is 
ascribed to the anger of the Powers to whose keeping 
his promise had been committed 1 . In such cases the 
priest of the deity invoked is apt to become the inter- 
preter of the obligation undertaken, or the arbiter as 
to how far it has been performed. Possibly he is made 
the keeper of an object for which safe custody is desired, 
or the depositary of an object whose ownership is dis- 
puted. Sometimes, indeed, it is rather within the breasts 
of chiefs or kings (since they act as judges and exercise 
executive power) than in those of priests that the know- 
ledge of customs and maxims is deemed to reside. But 
in these cases the royal office has itself, if not a priestly, 
yet a sacred character, and the priest plays no leading 
part in the political or social system. The nature of the 
religion, and its more or less mystical tendency, have 
of course a good deal to do with the place allotted to 
the priesthood in early societies. 

Where legal rules take the form of written records 
embodying what is held to have been delivered to a 
people either directly by the deity or through sages 
recognized as inspired or guided by some divine power, 
the sanctity of law reaches its maximum. It is then a 
part of religion, and those who know it and expound it 
have a religious no less than a legal function. 

In such documentary records Law and Religion are 
often so closely interwoven as to be scarcely separable. 
Many rules are secular in one aspect, religious in an- 
other, so that it may be doubted which kind of motive 
prompted them, which kind of object they were designed 
to secure. A regulation of ceremonial purity may have 
its, perhaps forgotten, origin in considerations of a sani- 
tary nature. A sacrifice prescribed as an atonement 

1 Thus we are told by an early Irish annalist that 'the sun and the wind killed 
Laoghaire (king of Ireland in the time of St. Patrick) because he broke his oath to 
the men of Munster.' 
41 



642 THE RELATIONS OF LAW AND RELIGION 

for sin may also operate as a civil penalty. Offences 
against the community may be deemed primarily of- 
fences against the deity and so dealt with ; and a fre- 
quent punishment for what we should now call crimes 
is to devote the culprit to the wrath of the powers of the 
nether world, or to deprive him of the protection of those 
who rule the upper world, and therewith expose him to 
outlawry, the oldest of all legal sanctions. 

In nations living under the influence of such ideas, 
the exponents of Law and Religion tend to be the same 
persons, because these two branches of public admini- 
stration are conceived as being the same, or at least two 
different sides of the same thing. Such persons may or 
may not be priests performing sacrifices or consulting 
the deity through oracles, or omens, or a sacred lot. 
But they are the depositaries of the sacred traditions, 
and it is they who interpret those traditions and apply 
them to concrete cases. As such they are usually among 
the ablest and most educated persons in the community, 
sometimes prominent members of the ruling class. 

Yet religion must not in such a state of society be 
conceived as the dominant power, which gives birth to 
Law. In early societies the duties and acts which belong 
to the external or secular side of life are more important 
than is the part of life concerned with the emotions 
felt towards the deity, whether of reverence, love, or 
fear. But in the observance of all the established cus- 
toms and in the performance of all the prescribed cere- 
monies, that which is pleasing to the gods is not sepa- 
rated even in thought from that which is salutary for the 
community. The service of the deity consists, apart 
from occasions of orgiastic excitement, not in the emo- 
tional attitude of the soul, but in the discharge of the 
duties recognized as owed to the family and the commu- 
nity, duties which are more or less moral according to 
the character of the religion — for righteousness may 
hold a higher or a lower place among them — but which, 
whether they relate on the one hand to sacrifices offered 



TEE RELATIONS OF LAW AND RELIGION 643 

and fasts observed, or on the other hand to the fulfil- 
ment of all that the tribe or the State expects from its 
citizens, are external duties. In most early nations, 
these duties are prescribed not by religious emotion, 
but by settled usages and rules which have the sanction 
alike of the State whose welfare is involved in their ob- 
servance, and of the unseen Powers that protect it. The 
people have not yet begun to distinguish by analysis 
the three elements of Law, Morality and Devotion, 
though here and there the voices of lofty spirits, such 
as the prophets of Israel, are heard proclaiming the 
supremacy of the law of righteousness as the true ex- 
pression of the Will of God, and obedience to it as the 
truest service that can be rendered by His creatures. 

The relation borne by Law, Morality, and Worship, 
each to the other, differs widely in different peoples. 
The student of early society must be always on his guard, 
like the student of natural history, against expecting a 
greater uniformity than in fact exists, and against gene- 
ralizing broadly from a few striking instances. Even 
so brilliant a' speculator as Sir Henry Maine fell into 
the error of assuming the system of paternal power to 
be practically universal in certain stages of society. 
Among our Scandinavian and Low German ancestors, 
for example, it would appear (so far as our imperfect 
data go) that the worship of the gods had not very much 
to do with legal usages and civil polity, though to be 
sure other influences came in at a comparatively early 
stage to turn the current of their development 1 . The 
same may be true of the Gadhelic tribes, though the 
knowledge we have regarding their usages and worship 
while still heathen is lamentably scanty. There is, how- 
ever, in the records of early Rome and of the Greeks, 
as well as in those of some Eastern nations, a good deal 
to illustrate the view I have been trying to state. 

1 But in Norway the Assembly is usually held at a temple, as in Iceland the 
Go'Si is both a priest and a chief, and the temple is the place where judicial oaths 
are taken. See Essay V. 



644 TEE RELATIONS OF LAW AND RELIGION 

A striking example of conditions of thought and prac- 
tice in which religion had (at a comparatively advanced 
stage) been so involved in law as to be almost stifled by 
law is furnished by the Jewish people as we find them 
under Roman dominion/ The lawyers referred to in 
the New Testament 1 (a class of whom there are but 
few traces before the Captivity) are not priests (though 
of course a priest might happen to be learned in the 
law), yet they have a quasi-sacerdotal position as con- 
versant with and able to interpret a body of rules which 
are of divine origin, and embrace the relations of man 
to God as well as to his fellow men.) Between religious 
duty and religious ceremony on the one hand and the 
performance of civil duties on the other there is no line 
of demarcation : all are of like obligation and are tried 
by similar canons. Hence piety tends to degenerate into 
formalism: hence the precisians who insist upon petty 
externalities and neglect the weightier duties deserve 
and incur the rebukes of a higher spiritual teaching. It 
may indeed be said that one great part of the work re- 
corded in the Gospels, regarded on its historical side, 
was to disjoin Law from Religion or Religion from 
Law. And this work was performed not merely by 
superseding parts of the law known as that of Moses, 
or by giving a new sense to that law, but also by trans- 
forming Religion itself, purging away the externals of 
sacrifice and other ceremonial rights, and leading the 
renewed and purified soul into ' the glorious liberty of 
the people of God.' 

That majority of the Jewish race which did not accept 
the teachings of Christ continued for many centuries, 
scattered and depressed as it was after the destruction 
of Jerusalem, to treat its ancient law-books and the 
traditions which had gathered round them as being both 
a body of civil rules and a religious guide of life. De- 

1 The 7pan.fx.aT6is (scribes), vofiiKoC (lawyers), and voixo8iSao-ica.\oi (doctors of the 
law) of the New Testament seem to be different names for the same class, and iden- 
tical with the iepoypa.fi;oiaT<:ts of Josephus. 



THE RELATIONS OF LAW AND RELIGION 645 

spite the tendency to formalism which has been noted, 
there were among the Rabbis of the early centuries a.d. 
not a few who dwelt upon the moral and emotional side 
of the Mosaic Law, and who through it sustained the 
spirit of the sorely tried nation. 

In the Christian Church also ceremonies and external 
observances came before long to play a great part in 
worship, and were for ages an essential element in the 
popular conception, indeed in the practically universal 
conception, of Christianity itself both as a theology and 
as a religion. The atmosphere which surrounded nascent 
Christianity was an atmosphere saturated with rites and 
observances. There were in the primitive Church some 
few usages and in the New Testament some few texts 
on which it was possible to erect a fabric of ceremonial 
worship. But even if these conditions had been absent, 
the tendencies of human nature to create a body of 
ritual and to attach a sort of legal sanction to the 
external duties which custom prescribed would have 
prevailed. 

How far the rites and practices which nearly every 
branch of the Christian Church has to a greater or less 
extent enjoined are each of them interwoven with the 
vital tenets of the faith, is a question not likely to be 
settled in any future that we can foresee. But the con- 
ception of the ' Kingdom of the Heavens ' as something 
dissevered from the obligations imposed bydegal tradi- 
tion has also remained ever since in Christianity as a 
principle of profound significance, which has at different 
times emerged in various forms to become sometimes 
a destroying, sometimes a vivifying and transforming 
force. Such sayings as ' Where the Spirit of the Lord 
is, there is liberty,' or 'He hath. made you kings and 
priests to God,' or ' Ye are not under the Law but under 
Grace,' have from time to time roused men to hold 
themselves delivered from all bonds of custom ex- 
pounded or rules enforced by ecclesiastical authority. 

I will not, however, attempt to follow out the intricate 



646 THE RELATIONS OF LAW AND RELIGION 

relations between the two conceptions, as they appear 
in the long course either of Christian or of Jewish an- 
nals, but will pass on to consider the phenomena of their 
connexion in another field, one in which the phenomena 
are comparatively simple, and lie open to-day to the 
study of every traveller in a land where the old and the 
new stand in striking contrast. 

The best modern instance of the identity of Religion 
and Law is to be found in that originally misconceived 
and subsequently perverted form of Judaism which still 
prevails extensively over the eastern world, and recog- 
nizes Muhamad of Mecca as the last and greatest of the 
prophets of Jehovah. In Islam, Law is Religion and 
Religion is Law, because both have the same source 
and an equal authority, being both contained in the same 
divine revelation. I cannot better illustrate their union 
than by giving a short account of an ancient and splen- 
did University where they are taught as one, hoping 
that so much of digression as is thereby involved will 
be pardoned in respect of the interest which this famous 
seat of learning deserves to excite, and of the light which 
it casts on the early history of the Universities of Europe 
— of Bologna and Paris, of Padua and Salamanca and 
Prague, and of our own Oxford and Cambridge. 

About three hundred and fifty years after Muhamad, 
and towards the end of the tenth century of the Chris- 
tian era, Johar, general of the Fatimite Sultans estab- 
lished at Tunis, conquered Egypt. When he built Cairo 
(El Kahira, ' the Victorious '), not far from the decayed 
Memphis, he founded in the new city a mosque which 
presently obtained the name of El Azhar, that is to say, 
' The Flowers ' or ' The Flourishing.' The Fatimites, 
belonging to the schismatic sect of the Shiites, were 
particularly anxious to establish their ecclesiastical posi- 
tion against the orthodox Sunnites, and, just as Pro- 
testant princes in the sixteenth century founded uni- 
versities for the defence of their tenets — as, for instance, 
Elector John of Saxony set up the University of Jena 



THE RELATIONS OF LAW AND RELIGION 647 

— so the second Fatimite ruler of Egypt, Khalif Aziz 
Billah, resolved to attract learned men to his capital. 
He gathered famous teachers to the Mosque, and there 
was soon a great afflux of students. Sultan Hakim 
(probably a madman), who went so far beyond the doc- 
trines of Shiism as to declare himself an incarnation of 
Ali and a Mahdi, closed El Azhar, and transferred the 
University to another mosque which he had founded. 
However, the teaching staff was subsequently brought 
back to El Azhar (which returned finally to Sunnite 
orthodoxy with the conquest of Egypt by Saladin in 
1 171 a.d.), and it has been now for many centuries the 
greatest University in the Musulman world, being situ- 
ate in what has been, since the decline of Bagdad, the 
greatest purely Musulman city 1 . The number of stu- 
dents sometimes reaches ten thousand ; at the time of 
my visit (in 1888) it was estimated at eight thousand. 

The whole teaching of the University is carried on 
within the walls of the Mosque, a large group of build- 
ings, approached by six gates, and standing in the oldest 
part of Cairo. The chief entrance is from the Alley 
(or arcade) of the Booksellers in the Bazaar. At the 
outer portal, in the portico, the visitor leaves his shoes. 
To the left of the inner portal I found a noble square 
hall, said to date from the fourteenth century, as lofty 
as the chapel of Magdalen College and about as large, 
though different in shape, with beautiful marbles on 
the walls, and an aisle separated from the rest of the 
chamber by a row of tall columns, supporting slightly 
pointed arches. The sunlight came in through large 
openings, filled by no glass, under the roof. In the 
centre there were sitting or kneeling or crouching some 
eighty or ninety men in an irregular circle, mostly young 
men, yet many over thirty and some as old as fifty, with 

1 Stambul (Constantinople) is larger, but Stambul has always had a large Chris- 
tian element, whereas Cairo was till about thirty years ago almost wholly Mu- 
hamadan. Moreover Cairo was better situated for drawing students from North 
Africa and Western Asia than Stambul, which is almost on the outermost edge of 
the Musulman world. 



648 TEE RELATIONS OF LAW AND RELIGION 

their shoes laid beside them on the matting. In front of 
them, sitting cross-legged on a low wooden throne, was 
an elderly professor, holding a book in his hands, and 
appearing to read from it. Now and then a question 
came to him from the circle, which he answered quickly ; 
but otherwise the audience were perfectly still, and no 
sound was heard save his own low voice and the beat- 
ing of the wings of the birds as they flew to and fro 
above. The book was an authoritative commentary on 
the Sacred Law, to which he added his own explanations 
as he read ; and he was treating of the four requisites 
of prayer, especially of the first of the four, viz. Devo- 
tional Intent. No one took notes, but all listened with 
the closest attention. He was the Chief Sheykh of the 
Mosque, and in virtue of his office, also the Sheykh ul 
Islam or chief ecclesiastical and legal authority of Egypt, 
which, being expressed in the terms of an English Uni- 
versity, would make him Chancellor, Regius Professor 
of Divinity and Regius Professor of Civil Law rolled 
into one, and therewithal also Archbishop of Canterbury 
and Lord High Chancellor. 

In the similar but rather less spacious and ornate 
room opposite I found another class, smaller, and com- 
posed of somewhat younger men, listening to a lecture 
on what the Muslims call Dealings, i.e. civil law. The 
subject was Wills, and the requisites to the validity of a 
will, such as the sanity, freedom and full age of the tes- 
tator, were being explained with reference to a book of 
authority which lay before the lecturer, a younger man 
than the Chief Sheykh. He spoke with a fluency, clear- 
ness and evident power of interesting the class, which 
reminded me of a brilliant teacher whom I had heard 
twenty-five years before discoursing on the same subject 
at Heidelberg. 

Led hence under the lofty gateway which gives ac- 
cess to the great court, I saw, like an earlier traveller, 
characters inscribed above the gate, and was told by my 
Virgil that their import was — 'Actions must be judged 



THE RELATIONS OF LAW AND RELIGION 649 

by their intent, and every man shall be requited accord- 
ing to what he purposed ' — a maxim which belongs in 
one sense to religion, in another to law, but requires, 
like the corresponding phrase of our civilians — Actus 
non est reus nisi mens sit rea — to be carefully defined and 
qualified before it can be applied, seeing how often good 
intent is followed by bad result. 

The great Court of the Mosque is a quadrangle nearly 
as large as that of Christ Church, Oxford, and was once, 
like that of Christ Church, surrounded by arcades rest- 
ing on columns, of which now only a few remain. There 
are three tanks for ablutions and a great cistern of Nile 
water beneath, whence vessels are filled by boys who 
carry it round among the groups. It is the hour of 
forenoon rest between the morning lecture and the 
noontide meal, and a confused din of many voices rises 
from the six or seven hundred persons scattered through 
the quadrangle, whose ample space they do not crowd. 
The men, mostly young, are sitting or lying all over the 
flagged surface, reading or talking or reciting with a 
book open before them, many swaying backwards and 
forwards as they chant, all in the blaze of sunlight. 
Piles of thin, tough cakes, of which more anon, stand 
here and there. Through the groups walks a sturdy offi- 
cial bearing aloft a formidable symbol of order, two 
long and heavy fiat strips of leather attached to a stout 
handle, wherewith he coerces any disturber of the peace 
of the Mosque. Discipline is easily maintained, for the 
Oriental, unless violently excited, is submissive to au- 
thority, and dangerous only in a mob. Moreover the 
students are mostly poor, and therefore attentive to their 
studies. The arcade on the south-east side is filled with 
knots of boys from eight to fourteen years of age sitting 
round their teachers, each with a metal slate, a brass 
ink-horn, and a reed pen ; some gathered round a teacher 
armed with a long palm stick. They read aloud from 
the slate what they have written, thus learning by heart 
verses of the Koran, copies of which are set up on 



650 THE RELATIONS OF LAW AND RELIGION 

wicker stands, because the sacred volume must never 
be lower than the reader's waist. 

Adjoining the great quadrangle is the Liwan, or hall 
for prayer and preaching. It is really two parallel halls, 
partially separated by a wall, and divided into nine aisles 
by rows of columns nearly four hundred in number, the 
shafts of granite or marble with carved capitals. They 
were doubtless brought hither from Christian churches 
long since destroyed 1 , churches that may have echoed 
to the voices of Athanasius and of Cyril. Along the 
side towards Mecca are four short recesses (Kiblas) 
resembling the apses of an early Christian basilica, 
though much smaller, one for each of the four legal 
orthodox sects of Muslims. Beside the chief Kibla there 
is placed, high up on the wall, a small wooden box con- 
taining relics, among which is one equally fit to be re- 
vered by Jews, Christians and Muslims, viz. a piece of 
Noah's Ark. The effect of the hall is due rather to 
its vastness and to the maze of pillars than to any beauty 
in form or decorations ; for the walls are plain, and the 
low roof makes the interior more sombre than either 
the famous mosque of Kerwan or the still more rich 
and majestic mosque of the Ommiyad Khalifs at Cor- 
dova. As I entered this Liwan, the hour of midday 
prayers had arrived, and the crowd of students rose 
suddenly and, turning towards the four Kiblas, per- 
formed their devotions. This done, the multitude, pass- 
ing noiselessly, for every foot is unshod, through the 
maze of columns, sorted itself into classes, each grouped 
in an incomplete circle round its own professor. Every 
regular professor has his column, at whose foot he 
sits, leaning against it ; and here he reads or talks loudly 
enough to be heard over the din by those near him, for 
the clamour of many voices is lessened by the amplitude 
of the chamber. The younger or less privileged lec- 

1 The columns of the ancient and most sacred mosque at Kairoan or KeYwan 
(in the territory of Tunis), built by Sidi Okba, the conqueror of North Africa, were 
brought from Christian churches, and many from the great basilica of Carthage, 
the floor of which has been recently uncovered. 



THE RELATIONS OF LAW AND RELIGION 651 

turers mostly gather their hearers outside the Court, 
though I found a class of youths learning the elements 
of grammar at the foot of one of the Liwan columns. 
The lectures were mostly on grammar, which has a 
religious side, because it includes prosody and the proper 
pronunciation of the Koran. One eminent professor, 
who was also Select Preacher for the time being, was 
discoursing on Ibn Malek's treatise on Arabic Gram- 
mar, holding in his hand the treatise, which is a poem 
of one thousand verses. All the class had copies, and 
continued to listen with untroubled gravity while a cat 
walked across between them and the professor. An- 
other teacher, lecturing on logic, was being interrupted 
by a running fire of questions from his pupils, which he 
answered with swift promptitude and terseness. 

There are about two hundred and thirty professors, 
that is to say, persons authorized to teach and engaged 
in teaching 1 . As in the universities of mediaeval Eu- 
rope, graduation consists in a certificate of competence 
to teach ; and this is given to those who have spent the 
prescribed time in study by inscribing in the copy of 
the book which the graduate has been studying a state- 
ment by the teacher that he has mastered the contents 
of that book. When a certificate of wider attainments 
is sought, the candidate is examined orally by two or 
three sheiks. As in the Middle Ages, there are no 
written examinations ; and indeed writing is but little 
used, the aim of teaching being rather to cultivate the 
memory. The books studied are always the same, so 
there is no occasion for examination statutes and No- 
tices of Boards of Studies. The freshman begins with 
what is called Balagha, the use of language, a subject 
which comprises grammar, logic (with the elements of 
metaphysics), and rhetoric. Next follows theology, the 
Nature of God and the functions of the Prophet, after 
which comes the Law, including both the precepts of 

1 In the session of 1898-9 there were 198 professors and 7,676 students attached 
to the Mosque itself (without counting its dependent Kuttabs). 



652 TEE RELATIONS OF LAW AND RELIGION 

religion as applied in practice and those of what we 
should call civil or secular law, both of them based on the 
Koran and the Hadith or sacred tradition. Instruction 
is no longer given in medicine here. When taught, it 
was taught, as it is still in the University of Fez, from an 
Arabic translation of Aristotle. The course prescribed 
for one who aspires to be a Kadi (Judge of the Sheriat 
or Sacred Law) is fourteen years, but an even longer 
time would be needed to fit a man to be a Mufti or 
doctor of the law. Five or six years, I was told, would 
qualify a student to become a village schoolmaster, able 
to teach the elements of religion and to advise the 
peasants on questions of divorce, just as in rural Eng- 
land the schoolmaster used to draw wills, with much 
ultimate benefit to the legal profession: and the same 
length of study might enable a man to become Imam 
(curate in charge) of a small mosque. Study consists, 
in every branch, chiefly in learning by heart. Even 
religion is taught through rules for prayer and alms- 
giving, which must be exactly remembered. But there 
is also a large field for the development of subtlety of 
mind in the casuistical distinctions which form a large 
part of law, both moral and civil. Neither physical 
science, nor history, nor any language save Arabic is 
recognized, nor (which is more surprising) do arithmetic 
and mathematics now find a place 1 . 

The students come from all parts of the Musulman 
world, but the large majority from Egypt: and the 
Muslim legal sect to which most Egyptians belong (the 
Shafite) is accordingly the most numerous 2 , amounting 
to nearly half the total. They are mostly poor, and live 
to some extent on the charitable gifts of the citizens, 

1 In 1896 (eight years after my visit) instruction began to be provided in geome- 
try, algebra, arithmetic and geography, but it is given by secular teachers ap- 
pointed by the Egyptian Government, not by the regular staff of the Mosque. 

2 In 1898-9 the numbers of the four sects were as follows : 

Shafites— Professors, 86 ; Students, 3,495. 
Hanefites— Professors, 41 ; Students, 2,168. 
Malekites — Professors, 68 ; Students, 1,983. 
Hanbalites— Professors, 3 ; Students, 30. 



TEE RELATIONS OF LAW AND RELIGION 653 

paying nothing for their instruction. But a certain num- 
ber share in a kind of endowment which deserves notice, 
because it is the germ of a College — a germ, however, 
which never grew into a plant. 

The word Riwak (accent on the last syllable), properly 
a colonnade or corridor, is used at El Azhar to denote 
an apartment or set of apartments, allotted to certain 
students as sleeping-quarters. There are in the Mosque 
buildings many Riwaks, and several are set apart for 
students coming from some particular countries 1 . 
There is one for the Syrians, one for the natives of 
Mogreb (North-West Africa, from Tripoli to Morocco), 
one for the Kurds, one for the natives of Mecca and 
Medina (El Haramein), one for the Sudanese of Sen- 
naar, and so forth. Some are well ventilated and 
comfortable, such as that endowed by Ratib Pasha for 
Hanefites : some plain and bare. It is of course only in 
the three or four colder months that a roof is needed ; 
during the summer nights quarters a la belle ctoile are 
preferable. Practically, I was told, every student who 
wished could obtain quarters in a Riwak, because only 
the poor desire to be so accommodated: and a sleeping- 
place means no more than a bit of floor on which to 
spread your prayer carpet and place your chest of books 
and clothes. But the Riwaks (or most of them) also 
supply rations of bread to those students who apply for 
them when they have reached a certain stage of pro- 
ficiency, that is, have mastered two or three books and 
obtained a certificate to that effect. These rations con- 
sist of wheaten cakes, thin and tough, and are supplied 
out of endowments which have from time to time been 
bestowed on the Mosque or on particular Riwaks by 
pious founders. These wheaten cakes are in fact the 

1 Place of birth constituted an important basis of classification in mediaeval Uni- 
versities. In Oxford, as in Paris, the students were divided into the Northern and 
Southern nations (whence the two Proctors'), and in each of the Universities of 
Glasgow and Aberdeen there are still four Nations, a system of organization pre- 
served for the purposes of the election of a Lord Rector. Nations exist also in the 
University of Upsala. 



654 TEE RELATIONS OF LAW AND RELIGION 

very rudest form of what is called in Scotland a Bursary, 
and in England an Exhibition or Scholarship ; and the 
assignment of a Riwak as lodgings to students from a 
particular district may be compared with the earliest 
provision of a dwelling and a pittance for students in 
England, the acorn out of which there has grown the 
superb system of the Colleges of Oxford and Cam- 
bridge, many of them originally connected with particu- 
lar counties. 

The Mosque, that is to say the University, as dis- 
tinguished from the particular Riwaks, had at one time 
considerable endowments, called in Arabic Wakfs (pro- 
nounced Wakufs) ; but a large part of these endowments 
were seized by Muhamad Ali early in the nineteenth 
century (about 1820). In respect of them a considerable 
sum is now paid from the public treasury, and a further 
income is derived from the Wakfs which not having been 
seized, are now administered by the Government depart- 
ment in charge of charitable foundations. The present 
income of such foundations as remain is trifling, and 
the slender incomes of the senior professors are supple- 
mented by small payments from Government and by 
gifts from pious persons. The richer students are also 
expected to offer gifts, and sometimes a charitable citi- 
zen will send a sheep to give the poor students a better 
dinner on a feast-day 1 . 

Before leaving the University I was presented to its 
head, the Sheik El Azhar, whom I found sitting to 
hear and determine divers matters, his lectures having 
been disposed of in the forenoon. He was too great 
a man to rise to receive me, nor is it easy to rise when 
one sits cross-legged ; but he placed his hand upon his 
heart with a dignified courtesy and invited me to seat 

1 In 1898-9 the total sum paid to El Azhar out of the public treasury was LE 
(Egyptian pounds) 6,611, and out of the administration of the Wakfs LEs,224, be- 
sides a sum of LEi,5i2 derived from the endowments of the several Riwaks. The 
best endowed Riwaks are those of the Turks (516) and of the Mogrebins (364). I 
owe these figures to the kindness of my friend Yacoub Artin Pasha, the energetic 
and enlightened head of the educational administration of Egypt. The Egyptian 
pound is about twenty shillings and fourpence. 



THE RELATIONS OF LAW AND RELIGION 655 

myself beside him. His disciples were kneeling round 
him. He was more like an old Lord Chancellor than 
an old archbishop, with an air rather of complacent judi- 
cial shrewdness than of apostolic unction. When it had 
been explained to him that I was a lawyer and that law- 
was taught in the Universities of England, he remarked 
that religion consists in conduct and behaviour, whereto 
I replied that the Roman jurists stated another side of 
the same truth when they said,' Iuris praecepta haec sunt, 
honest e vivere, alteram non laedere, suum cuique tribnere! 

It was impossible to spend a day in El Azhar with- 
out being struck by its similarity to the Universities of 
Europe as they existed in the thirteenth and fourteenth 
centuries. 

In both an extreme simplicity of appliances. Nothing 
more than a few buildings capable of giving shelter has 
been needed here or was needed there : for a University 
is after all only a mass of persons possessing or desiring 
learning, a concourse of men, some willing to teach and 
others eager to be taught. 

In both a like simplicity of educational arrangements. 
Every graduate is, or may be if he likes, a teacher, and 
graduation is nothing more than a certificate of know- 
ledge qualifying a man to teach. 

In both, comparatively slender funds, which however 
increase slowly by the gifts of private benefactors. The 
whole establishment of El Azhar costs about £14,000 
sterling a year, rather more than half of which goes in 
salaries to the professors, w r hile about £1,600 goes in 
prizes and charitable aid to the students. Eight thou- 
sand (roughly speaking) are taught there at a cost of 
£1 15.?. per student. The University of Oxford and its 
colleges (taken together) with about three thousand 
undergraduate students have an annual revenue of about 
£333,000 x ; Harvard University in Massachusetts with 

1 Of this sum (which has been arrived at after deducting outgoing-s on estates, 
so that as respects this kind of property it represents net revenue) £55,000 is the 
revenue of the University and £278,000 the revenue of all the Colleges, including 
fees and room rents. 



656 TEE RELATIONS OF LAW AND RELIGION 

nearly four thousand students has £235,000 (of which 
tuition fees contribute £114,000). 

In both, the greatest freedom for the student. He 
may study as much or as little as he pleases, may select 
what professor he pleases, may live where he pleases, 
may stay as long as he pleases, and may be examined 
or not as he pleases. 

In both, a narrow circle of subjects and practically 
no choice of curriculum. El Azhar teaches even fewer 
branches than did Oxford or Bologna in the thirteenth 
century, for in Musulman countries the Koran has swal- 
lowed up other topics more than theology, queen of the 
sciences, and the study of the Civil and Canon Laws did 
in Europe. But a vast range of matters which are to-day 
taught in German, in American, and even in English 
Universities lie outside both the Trivium and Quadri- 
vium and the professional faculties as they stood in the 
Middle Ages. 

In both, little separation between teachers and pupils, 
and a mixture of students of all ages, from boys of 
twelve to men of fifty. In Oxford there is a tradition 
that marbles used to be played by students on the steps 
of the Schools. Why not, when one sees boys of twelve 
learning to read the Koran at El Azhar? Oxford may 
well have been then, like this mosque now, a school for 
persons of all ages. 

In both, a body of men liable to turbulence, and easily 
roused by political passion. A multitude living together 
without family ties or regular industrial occupation is 
prone to fanaticism ; and the students of El Azhar, like 
the Softas at Constantinople, like the monks of Alexan- 
dria in the days of Cyril and Hypatia, have sometimes 
raised tumults ; though these would be repressed more 
savagely here, should they displease the ruling pow- 
ers, than were those for which Paris and Oxford were 
famous in days when their scholars were fired by re- 
ligious or political excitement, and when the move- 
ments of public opinion and the tendencies we now 



THE RELATIONS OF LAW AND RELIGION 65? 

call democratic found through the eager crowd of 
university youth their most free and prompt expres- 
sion. 

Finally, in both, a kind of teaching and study which 
tends to the development of two aptitudes to the neglect 
of all others, viz. memory and dialectic ingenuity. The 
first business of the student is to know his text-book, 
if necessary to know every word of it, together with 
the different interpretations every obscure text may 
bear. His next is to be prepared to sustain by quick 
keen argument and subtle distinction either side of any 
controverted question which may be proposed for dis- 
cussion. As the habit of knowing text-books thoroughly 
— and the knowledge of Aristotle and the Corpus Juris 
possessed by mediaeval logicians and lawyers was won- 
derfully exact and minute — made men deferential to 
authority and tradition, so the constant practice in oral 
dialectical discussion made men quick, keen, fertile, and 
adroit in argument. The combination of brilliant acute- 
ness in handling points not yet settled, with unquestion- 
ing acceptance of principles and maxims determined by 
authority, is characteristic of Muhamadan Universities 
even more than it was of European ones in the Middle 
Ages, and tended in both to turn men away from the 
examination of premises and to cast the blight of barren- 
ness upon the extraordinary inventiveness and acuteness 
which the habit of casuistical discussion develops. And 
the parallel would probably have been closer could it 
have been drawn between the Musulman Schools, not 
as they are now, but as they were during the great age 
in Bagdad in Spain and in Egypt, and the schools of 
Western Europe in the days of Abelard or Duns Scotus. 
For El Azhar to-day impresses one as a University 
where both thought and teaching are in a state of de- 
cline, where men gnaw the dry bones of dogmas and 
rules which have come down from a more creative 
time. 

To what causes shall we ascribe the striking contrast 
42 



658 THE RELATIONS OF LAW AND RELIGION 

between the later history of schools which at one time 
presented so many similar features ? Why has Musul- 
man learning stood still in the stage it reached many 
centuries ago, while Christian learning, developing and 
transforming itself, has continually advanced? Why has 
El Azhar actually gone back? Why does it accomplish 
nothing to-day for the deepening, or widening, or ele- 
vating of Musulman thought? 

Of racial differences I say nothing, because to discuss 
these would carry us too far away from our main sub- 
ject. Their importance is apt to be overrated, and they 
are often called in to save the trouble of a more careful 
analysis, being indeed themselves largely due to his- 
torical causes, though causes too far back in the past to 
be capable of full investigation. Here it is the less neces- 
sary to discuss them, because many races have gone to 
make up the Musulman world, and some of these had 
attained great intellectual distinction before Islam ap- 
peared. Nor will I dwell on the tremendous catastrophe 
which overwhelmed the Musulman peoples of Western 
Asia in the twelfth, thirteenth, and fourteenth centuries, 
when many flourishing seats of arts and letters were 
overwhelmed by a flood of barbarian invaders, first the 
Seljukian Turks, then the Mongols of Zinghis Khan, 
then the Ottoman Turks whose rule has lain like a blight 
upon Asia Minor, Syria, and Irak for the last fourteen 
generations of men. Before the Seljuks and the Mon- 
gols came, philosophy and learning, science and art, had 
in some favoured spots reached a development sur- 
passing that of contemporary Christian states, a de- 
velopment which in the schools of Irak and of Persia 
had wandered far from orthodox Musulman tradi- 
tions, but which certainly showed that Islam is not in- 
compatible with intellectual development. That culture, 
however, which had adorned the days of the earlier 
Khalifs, decayed even in Spain and in Barbary, where it 
was not destroyed by a savage enemy. It was not 
strong enough to recover itself in Syria, Asia Minor, or 



THE RELATIONS OF LAW AND RELIGION 659 

Egypt, and could neither elevate and refine the Turk 
nor send up fresh shoots from the root of the tree he 
had cut down. Even in Persia, though Persia remained 
a national kingdom, preserving its highly cultivated 
language and its love of poetry, creative power withered 
away. While therefore giving full credit to the Arabs, 
Syrians, and Persians of the earlier Musulman centuries 
for their achievements, we are still confronted by the 
fact that the soil which produced that one harvest has 
never been able to produce another. Scarcely any 
Musulman writer has for five hundred years made any 
contribution to the intellectual wealth of the world. 
Even the Musulman art we admire at Agra and Delhi, 
at Bijapur and Ahmedabad, was largely the work of 
European craftsmen. The majestic mosques of Con- 
stantinople are imitations of Byzantine buildings. Thus 
we are forced back upon the question why the Uni- 
versities of Islam, with all that they represent, have 
languished and become infertile. 

Among the causes to be assigned we may place first 
of all the greater intellectual freedom which Christianity, 
even in its darkest days, permitted. The Koran, being 
taken as an unchangeable and unerring rule of life and 
thought in all departments, has enslaved men's minds. 
Even the divergence of different lines of tradition and 
the varieties of interpretation of its text or of the Tradi- 
tions, has given no such opening for a stimulative di- 
versity of comment and speculation as the Christian 
standards, both the Scriptures themselves, the product 
of different ages and minds, and the writings of the 
Fathers, secured for Christian theology. 

In the second place, the philosophy, theology, and law 
of Islam have been less affected by external influences 
than were those of Christian Europe. Greek literature, 
though a few treatises were translated and studied by 
some great thinkers, told with no such power upon the 
general movement of Musulman thought as it did in 
Europe, and notably in the fifteenth and sixteenth cen- 



660 THE RELATIONS OF LAW AND RELIGION 

turies ; and Greek influence among Muslims, instead of 
growing, seems to have passed away. 

Thirdly, there has been in the Musulman world an 
absence of the fertilizing contact and invigorating con- 
flict of different nationalities with their diverse gifts and 
tendencies. Islam is a tremendous denationalizing force, 
and has done much to reduce the Eastern world to a 
monotonous uniformity. The Turks seem to be a race 
intellectually sterile, and like the peoples of North Africa 
in earlier days, they did not, when they accepted the 
religion of Arabia, give to its culture any such new form 
or breathe into it any such new spirit as did the Teutonic 
races when they embraced the religion and assimilated 
the literature of the Roman world. Only the Persians 
developed in Sufism a really distinct and interesting type 
of thought and produced a poetry with a character of its 
own ; and the Persians, being Shiites, have been cut off 
from the main stream of Musulman development, and 
have themselves for some centuries past presented the 
symptoms of a decaying race. 

Lastly, the identification of Theology and Law has 
had a baleful influence on the development of both 
branches of study. Law has become petrified and casu- 
istical. Religion has become definite, positive, frigid, 
ceremonial. Theology, in swallowing up law, has itself 
absorbed the qualities of law. Each has infected the 
other. In El Azhar theology is taught as if it were law, 
a narrow sort of law, all authority and no principle. 
Law is taught as if it was theology, an infallible, un- 
erring, and therefore unprogressive theology. Religious 
precepts are delivered in El Azhar as matters of external 
behaviour and ceremony. Some of the duties enjoined, 
such as prayer, are wholesome in themselves ; some,, 
such as almsgiving, are laudable in intention, but bene- 
ficial in result only when carried out with intelligence 
and discrimination; some, such as pilgrimage to Mecca, 
are purely arbitrary. All, however, are dealt with from 
the outside: all become mechanical, and the precise 



TEE RELATIONS OF LAW AND RELIGION CGL 

regulations for performing them quench the spirit which 
ought to vivify them. The intellect being thus cramped 
and the soul thus drilled, theology is dwarfed, and its 
proper development arrested. It is not suffered to 
create, or to help in the creation of, philosophy : and ac- 
cordingly in El Azhar, philosophy, in that largest sense 
in which it is the mother of the sciences, because em- 
bodying the method and spirit whence each draws its 
nutriment, finds no place at all. 

We are thus brought back to that general question 
of the relations of religion and law in the Musulman 
world from which, in the interest naturally roused by 
the sight of a University recalling the earlier history of 
Oxford and Cambridge, I have been led to turn aside. 

The identification of religion and law rests upon two 
principles. One is the recognition by Islam of the Koran 
as a law divinely revealed, covering the whole sphere of 
man's thought and action. Being divine it is unerring 
and unchangeable. 

The other is the promulgation of this revelation 
through a monarch both temporal and spiritual, Mu- 
hamad, the Prophet of God. 

Since the revealed law is unerring, it cannot be ques- 
tioned, or improved, or in any wise varied. Hence it 
becomes to those who live under it what a coat of mail 
would be to a growing youth. It checks all freedom of 
development and ultimately arrests growth, the growth 
both of law and of religion. 

Since the revelation comes through a prophet who 
is also a ruler of men, a king and judge, as well as an 
inspired guide to salvation, it is conveyed in the form 
of commands. It is a body of positive rules, covering 
the whole of the Muslim's conduct towards God and 
towards his fellow men. 

Three results follow of necessity. 

Religion tends to become a body of stereotyped ob- 
servances, of duties which are prescribed in their de- 
tails, and which may be discharged in an almost me- 



662 THE RELATIONS OF LAW AND RELIGION 

chanical way. The Faith is to be held, but held as a set 
of propositions, which need not be accompanied by any 
emotion except the sense of absolute submission to the 
Almighty. Faith, therefore, has not the same sense as 
it has in the New Testament. It is by works, not by 
faith (save in so far as faith means the acceptance of 
the truths of God's existence and of the prophetic mis- 
sion of Muhamad) that a Muslim is saved. There is little 
room for the opposition of the letter and the spirit, of 
the law and grace, for religion has been legalized and 
literalized. Nevertheless there is in many Muslims a 
vein of earnest piety, and a piety which really affects 
conduct. Those Westerners who have praised Islam have 
often admired it for the wrong things. They admire the 
fierce militant spirit, and the haughty sense of superiority 
it fosters. They undervalue the stringency with which 
it enforces certain moral duties, and the genuine, if 
somewhat narrow piety which it forms in the better 
characters. 

Law becomes a set of dry definite rules instead of a 
living organism. It is a mass of enactments dictated by 
God or His mouthpiece, instead of a group of principles, 
each of which possesses the power of growth and varia- 
tion. The two motive powers, whether one calls them 
springs of progress or standards of excellence, which 
guided the development and made the greatness of 
Roman Law, the idea of the Law of Nature and the idea 
of Utility, as an index to the law of nature, are absent. 
There is no room for them where the divine revelation 
has once for all been delivered. Reason gets no fair 
chance, because Authority towers over her. Forbidden 
to examine the immutable rules, she is reduced to weave 
a web of casuistry round their application. It is only 
through the interpretation of the sacred text and of the 
traditions that the Law can be amended or adapted to 
the needs of a changing world: and one reason why 
the Musulman world changes so little is to be found 
in the uncha^ngeability of its Sacred Law. The difficul- 



THE RELATIONS OF LAW AND RELIGION 663 

ties which European Powers have found in their efforts 
— efforts which to be sure have been neither zealous nor 
persistent — to obtain reforms in the Ottoman Empire, 
are largely due to the fact that the Sacred Law has a 
higher claim on Muslim obedience than any civil enact- 
ment proceeding from the secular monarch. 

Such a system will obviously give little scope for the 
development of a legal profession. Advocacy is un- 
known in Musulman countries. The parties conduct 
their respective cases before the Kadi 1 . They may pro- 
duce to him opinions signed by doctors of the law in 
favour of their respective contentions, but the only 
notion the Musulman (i.e. the non-Occidentalized Musul- 
man) can form of an advocate in our sense of the word 
is a paid, and presumably false, witness. 

The community suffers politically. The duty of un- 
questioning obedience, and the habit of blind submission 
to authority, dominate and pervade the Musulman mind 
so completely that its only idea of government is des- 
potism. Nothing approaching to a free ruling assembly, 
either primary or representative, has sprung up in a 
Musulman country ; and it would need almost an intel- 
lectual revolution to make such a system acceptable or 
workable there 2 . 

Finally, it is a consequence of the system described 
that there is an absolute identity of State and Church. 
The Church is the State, but it is a highly secular State, 
wanting many of the attributes we associate with the 
Church. It commands as a matter of course the physi- 
cal force of the State, and needs no special anathemas 
of its own. Its priests, so far as it can be said to have 
priests, are lawyers, and its lawyers are priests, and its 
students graduate from the University into what is one 

1 Whether this system tends to facilitate the bribing of judges, almost universal 
in countries ruled by a Musulman monarch, quaere. 

2 I do not mean to suggest that races like those of Arabia, Syria, and Persia, may 
not under the contact and stimulus of European literature and thought again de- 
velop an intellectual life of their own. But it can hardly be a life on the orthodox 
lines of Islam. The first thing to be hoped for is that Syria and Asia Minor may 
get rid of the Turk, who has never shown himself fit for anything but fighting. 



664 THE RELATIONS OF LAW AND RELIGION 

and the same profession. As the Church is pre-emi- 
nently a militant Church, born and nursed in war, its 
head, the Khalif, is also of right supreme temporal sove- 
reign. The Pope is Emperor, and the Emperor is Pope. 
They are not two offices which one man may fill, as the 
Emperor Maximilian wished to be chosen Pope. They 
are one office. And accordingly when any spiritual pre- 
tender arises, claiming to be a prophet of God, he be- 
comes forthwith, ex necessitate terminorum, a temporal 
ruler, like the Mahdi of the Sudan at the present moment 
(1888). The only exception to this absolute identifica- 
tion of Church and State (which is of course a fact mak- 
ing most powerfully for despotism) is to be found in 
the incompetency of the Khalif to pronounce upon the 
interpretation of the sacred law. This attribute of the 
Pope is lacking. The spiritual head of the Musulman 
world, for this purpose, and therewith also its legal head, 
is a lawyer, the Sheik-ul-Islam, to whom it belongs to 
deliver authoritative interpretations of questions arising 
on the law, i.e. on the Koran and the Traditions. Such 
an opinion is called a Fetwa. Against it even a Khalif 
cannot act without forfeiting his right to the obedience 
of his subjects, so when any Sovereign claiming to be 
Khalif wishes to do something of questionable legality, 
he takes care to procure beforehand from the Sheik- 
ul-Islam a fetwa covering the case. Being in the Khalif's 
power, the Sheik rarely hesitates, yet he is in a measure 
amenable to the opinion of his own profession, and might 
be reluctant to venture too far. So too the Khalif, 
though he might depose a recalcitrant Sheik (were such 
a one ever to be found), and replace him by a more pliant 
instrument, must also have regard to public sentiment, 
a power always formidable in the sphere of religion, and 
the more formidable the more the mind of a people is 
removed from the influence of habits properly political, 
and is left to be coloured by religious feeling. 

Islam these owes features of its religion, its law and 
its politics to its source in a divine revelation complete, 



THE RELATIONS OF LAW AND RELIGION 665 

final, and peremptory. But it is not the only religion 
that has a like source. The Musulmans class three re- 
ligious communities as Peoples of the Book. The other 
two are the Jews and the Christians. Of the Jews I 
have spoken already. Their system, as it stood at the 
time of our Lord's appearing, resembled in many points 
that which Islam subsequently created, though there was 
never in it any complete identification of the spiritual 
and the secular power, because it had a regular heredi- 
tary priesthood, which, though for a time acting as 
leader and ruler, had no permanent coercive secular au- 
thority. The Jewish system had, moreover, in the words 
of the Prophets and in the Psalms influences comple- 
mentary to the Mosaic law and the Traditions, and cor- 
rective of any evils which might spring from undue 
respect for the latter. Moreover, the historical develop- 
ment of that system was checked by external conquering 
forces, which ultimately deprived it of the chance of be- 
coming a temporal power. 

What, however, shall we say of Christianity? Why 
has the course of its history been so unlike that of Islam? 
Why has its origin in a divine revelation not impressed 
upon it features like those we have been considering? 
I must be content to indicate, without stopping to de- 
scribe, a few, and only a few, of the more salient causes. 

The Christian revelation as contained in the Old and 
New Testaments is not, except as regards sections of 
the Mosaic law, a series of commands. It is partly a 
record of events, partly a body of poems, partly a series 
of addresses, discourses, and reflections, speculative, 
hortatory, or minatory, and mostly cast in a poetic 
form, and partly a collection of precepts. These pre- 
cepts are all, or nearly all, primarily moral precepts, 
which are addressed to the heart and conscience, and 
they proceed from teachers who had no compulsive 
power, so that such authority as the precepts possess 
is due only to their intrinsic worth, or to the belief that 
they express the Divine will. Especially in the case of 



666 TEE RELATIONS OF LAW AND RELIGION 

the New Testament (though the same thing is essen- 
tially true of the Prophets) the precepts are directed not 
so much to the enjoining of specific right acts fit to be 
done as to the creation of a spirit and temper out of 
which right acts will naturally flow. Had the Penta- 
teuchal law been taken over bodily into Christianity, 
things might have been different, though the other ele- 
ments of the revelation would have kept its influence in 
check. But fortunately among the forces that were at 
work in the primitive Church, there were some strongly 
anti-Judaic, so any evil that might have been feared 
from that quarter was averted. 

It is impossible to make a code out of the New Testa- 
ment. The largest collection of positive precepts, de- 
livered with the most commanding authority, is that 
contained in the fifth, sixth, and seventh chapters of 
St. Matthew's Gospel. But these are so far from being 
laws in the ordinary sense of the word that no body of 
Christians has ever yet come near to obeying them. 
Indeed hardly any body of Christians has ever seriously 
tried to do so. They are obviously addressed to the 
heart and intended not so much to prescribe acts as to 
implant principles of action. 

Similarly the Epistles are either moral exhortations 
and expositions of duty or else metaphysical discussions. 
Neither out of them can any code be framed which a 
lawgiver could attempt to enforce. Even on the exter- 
nal observances of religion and constitution of the 
Church, so little is said, and said in such general terms, 
that Christians have been occupied during the last four 
centuries in debating what it was that the authors of the 
Epistles meant to enjoin. 

After the canonical Scriptures come the Fathers of 
the Church, whose writings were at one time universally, 
and by a large part of Christendom still are, deemed to 
enjoy a high measure of authority. They may be com- 
pared to those early Musulman writers from whom the 
traditions of Islam descend, or to the early recorders 



THE RELATIONE OF LAW AND RELIGION 667 

of and commentators on those traditions. The Fathers, 
however, did not generally affect to lay down positive 
rules, but were occupied with exhortation and discus- 
sion. Neither out of their treatises could a body of law 
be framed, nor did any one think of doing this till long 
after their day. Even then it was as guides in doctrine 
and discipline, not as the source of legal rules, that they 
were usually cited. 

Christianity began its work not only apart from all 
the organs of secular power, but in the hope of creating 
— indeed for a time, in the confidence that it would create 
— a new society wherein brotherly love should replace 
law. 

Before long it incurred, as a secret society, the sus- 
picion and hatred of the secular power, and had indeed 
so much to suffer that one might have expected its pro- 
fessors to conceive a lasting distrust of that power in its 
dealings with religion. This,> however, did not happen. 
So soon as the secular monarch placed his authority at 
the disposal of the Church, by this time organized as 
a well-knit hierarchy, the Church welcomed the alliance, 
and began ere long to invoke the help of carnal weapons. 
This was the time when she might in her growing 
strength have been tempted to impose her precepts 
upon the community in the form of binding rules. But 
the field was already occupied. She was confronted 
and overawed by the majestic fabric of the Roman law. 
In the East that law continued to be upheld and applied 
by the civil authorities. In the West it suffered severe 
shocks from the immigration of the barbarian tribes ; 
but as it was associated with Christian society, the 
Church clung to it, and was in no condition for some 
centuries to try to emulate or supersede it. When the 
time of her dominance came in the eleventh, twelfth, and 
thirteenth centuries, she did indeed build up a parallel 
jurisdiction of her own, with courts into which laymen as 
well as clerks were summoned, and she created for these 
courts that mass of decrees, almost rivalling the Civil 



668 THE RELATIONS OF LAW AND RELIGION 

Law in bulk and complexity, which we call the Canon 
Law. In the canon law there may seem to be an ana- 
logue to the sacred law of Islam. But the resemblances 
are fewer than the differences. The canon law never had 
any chance of ousting the civil law, which had already 
entered on a period of brilliant development and potent 
influence at the time when the decrees of earlier Coun- 
cils and Popes were beginning to be formed into a 
systematic digest of rules ; and temporal rulers were 
generally able to hold their own against Popes and arch- 
bishops. Moreover the canon law, being partly based 
on or modelled after the Roman civil law, escaped some 
of the faults that might have crept into it had it been 
erected on a purely theological foundation. The Church 
was already so secularized that its law was largely secu- 
lar in spirit, and ecclesiastical jurists were at least as 
much jurists as they were churchmen. The question 
propounded in the twelfth century, whether an arch- 
deacon could obtain salvation, shows that the church- 
man who betook himself to legal business was deemed 
to be quitting the sphere of piety. Thus law, canon as 
well as civil law, remained law, and religion remained 
religion. The canon law is the law of the Church as an 
organized and property-holding society or group of so- 
cieties. It is the law for dealing with spiritual offences. 
It is the law which regulates certain civil relations which 
the Church claims to deal with because they have a re- 
ligious side. But there is no general absorption of the 
civil by the ecclesiastical, no general lowering of the 
spiritual to the level of the positive, the external, and the 
ceremonial. In the fifteenth and sixteenth centuries the 
New Learning and the great ecclesiastical schism re- 
moved the danger, if danger there ever was, that there 
should descend upon Christianity that glacial period 
which has so long held Islam in its gripe. 



XIV 

METHODS OF LAW-MAKING IN 
ROME AND IN ENGLAND 

Introductory. 

The relations borne by the growth and improvement 
of the law of a country to that of the constitutional de- 
velopment of that country as a State are instructive in 
many aspects — instructive where the lines of progress 
run parallel to one another, instructive also where they 
diverge. I propose in the following pages to consider 
them as they concern the organs and the methods of 
legislation at Rome and in England. The political side 
of this subject is a very large one, indeed too large to be 
discussed here, for it would involve a running com- 
mentary upon the general history of these two States. 
I will only remark that the inquiry would show us, 
among other things, the fact that the progress of Rome 
from a republic, half oligarchic, half democratic, to a 
despotism, did not prevent the phenomena which mark 
the evolution of its legislation from bearing many re- 
semblances to the evolution of legislation in England, 
where progress has been exactly the reverse, viz. from 
a strong (though indeed not absolute) monarchy to what 
is virtually a republic half democratic, half plutocratic. 
The present inquiry must be confined to the legal side 
of the matter, viz. to the Organs and the Methods of 
Legislation regarded not so much as the results of poli- 



670 ROMAN AND ENGLISH LEGISLATION 

tical causes, but rather as the sources whence law springs 
and the forces whereby it is moulded. 

The working of these Organs and Methods may be 
studied, and their excellence tested, with regard to both 
the aspects of law itself, its Substance and its Form. 
The merit of a system of Law in point of Substance is 
that it be righteous and reasonable, satisfying the moral 
sentiments of mankind, giving due scope to their ac- 
tivity, securing public order, and facilitating social pro- 
gress. In point of Form, the merit of Law consists in 
brevity, simplicity, intelligibility, and certainty, so that 
its provisions may be quickly found, easily compre- 
hended, and promptly applied. Both sets of merits, 
those of Substance and those of Form, will depend partly 
on the nature of the persons or bodies from whom the 
Law proceeds, that is the Organs of Legislation, partly 
on the Methods employed by those persons or bodies. 
But the merits of Substance open up a field of inquiry 
so wide that it will be better to direct our present cri- 
ticism of Organs and Methods chiefly to those excel- 
lences or defects of the law which belong to its form. 
I propose to consider these as they worked in Rome, 
and have worked down to and in our own time in Eng- 
land, assuming the broad outlines of the legal history 
of both States to be already known to the reader, and 
dwelling on those points in which a comparison of Rome 
and England seems most likely to be profitable. 

I. Law-Making Authorities in General. 

First let us see what, speaking generally, are the au- 
thorities in a community that make the Law, and How 
— that is to say, by what modes or through what organs, 
they make it. 

Broadly speaking, there are in every community two 
authorities which can make Law: — the State, i.e. the 
ruling and directing power, whatever it may be, in which 
the government of the Community resides, and the Peo- 



HUMAN AND ENGLISH LEGISLATION 671 

pie, that is, the whole body of the community, regarded 
not as organized in a State, but as being merely so many 
persons who have commercial and social relations with 
one another. There is, to be sure, a school of juridical 
writers which does not admit that the people do or can 
thus make Law, insisting that Custom is not Law till 
the State has in some way expressly recognized it as 
such. But this view springs from a theory so incom- 
patible with the facts in their natural sense, that a false 
and unreal colour must be put upon those facts in order 
to make them fall in with it. It is unnecessary to pur- 
sue a question which is apt to become merely a verbal 
one. Let it suffice to say that Law cannot be always 
and everywhere the creation of the State, because in- 
stances can be adduced where Law existed in a country 
before there was any State ; and because the ancient 
doctrine, both of the Romans and of our own fore- 
fathers — a doctrine never, till recently, disputed — held 
the contrary. A great Roman jurist says, with that 
practical directness which characterizes his class, ' Those 
rules, which the people without any writing has ap- 
proved, bind all persons, for what difference does it 
make whether the people declare their Will by their 
votes or by things and acts 1 ? ' This is the universal 
view of the Romans, and of those peoples among whom 
the Roman law, in its modern forms, still prevails. And 
such has been also the theory of the English law from 
the earliest times. 

Now the State has two instruments or organs by 
which it may legislate. One is the ruling Person or 
Body, in whom the constitution expressly vests legis- 
lative power. The other is the official (or officials), 
whether purely judicial, or partly judicial and partly 
executive, to whom the administration of the law is com- 
mitted, and whom we call the Magistrate. This dis- 
tinction does not refer to the instances in which legis- 
lative authority is, by an act of the Governing Power, 

1 Julian in Dig, i. 3. 32. 



672 ROMAN AND ENGLISH LEGISLATION 

specially delegated to some magisterial person or body. 
Those instances are really to be deemed cases of mediate 
or indirect legislation by the supreme Government (like 
the power given by statute to a railway company to 
make by-laws). The position of the Magistrate is dif- 
ferent, because judicial administration, and not legisla- 
tion in the proper sense, is the work he has been set 
to do. 

Similarly the People have two modes of making Law. 
In the one they act directly by observing certain usages 
till these grow so constant, definite, and certain that 
everybody counts upon them, assumes their existence, 
and feels sure that they will be recognized and enforced. 
In the other they act indirectly through persons who 
have devoted themselves to legal study, and who set 
forth, either in writing or, in earlier times, by oral dis- 
course, certain doctrines or rules which the community 
accepts on the authority of these specially qualified stu- 
dents and teachers. Such men have not necessarily 
either any public position or any direct commission from 
the State. Their views may rest on nothing but their 
own reputation for skill and learning. They do not pur- 
port to make law, but only to state what the law is, and 
to explain it ; but they represent the finer and more 
highly trained intellect of the community at work upon 
legal subjects, just as its common and everyday under- 
standing, moved by its sense of practical convenience, 
is at work in building up usages. So the maxims and 
rules these experts produce come to be, in course of 
time, recognized as being true law, that is to say, as 
binding on all citizens, and applicable to the decision of 
disputed questions. 

Taking then these four Organs or Sources, we find 
that one Source — the People, as makers of Customary 
Law — is so vague and indeterminate that one can say 
little about it as an Organ, though the process by which 
Custom makes its way and is felt to be binding is a curi- 
ous process, well deserving examination. Two remarks 



ROMAN AND ENGLISH LEGISLATION 673 

may however be made on it. The first is this, that it is 
essential to the validity of a rule claimed to have been 
made by Usage that it shall possess a certain extension 
in Time and a certain extension in Space. It must have 
prevailed and been observed for so long a period that no 
one can deny its existence. It must have prevailed over 
so wide an area, that is to say, have been used by so 
many persons, that it cannot be alleged to be a merely 
local usage, unknown outside the locality, and therefore 
not approved by the tacit consent of the community at 
large. (The size of the area is of course in each case 
proportioned to the size of the whole community. A 
custom observed by a population of a few thousand peo- 
ple in a canton of Switzerland may make the custom 
law for the canton, though observance by a similar 
number would not make a similar custom law for a large 
country like Bavaria.) The other remark is that some- 
times the observance of a custom by a particular class 
of the community, as for instance by agriculturists or 
merchants, may suffice to establish the rule for the com- 
munity at large 1 . This happens where the custom is 
by its nature such that only agriculturists or merchants 
(as the case may be) would need to have a custom on 
the matter at all. Universality of practice by them is 
then sufficient to make the custom one valid for the 
whole community, which may be taken to have tacitly 
approved it. Sometimes, however, the usage of a par- 
ticular class is deemed to become law by its being im- 
ported as an implied condition into legal transactions, 
especially contracts, entered into by members of that 
class ; and this view has been frequently taken by our 
English Courts of mercantile usages, which they have 
in the first instance enforced rather as unexpressed ele- 
ments in a contract than as parts of the general law. 
It need hardly be added that the fact that the meaning 
and extent of a rule of Customary Law are often uncer- 

1 The ' Ulster Custom ' is an interesting instance, but it never quite got the 
length of becoming law. 

43 



674 ROMAN AND ENGLISH LEGISLATION 

tain, and give rise to judicial controversy, does not pre- 
vent the rule itself from being valid previous to its 
determination in such controversy, for this is exactly 
analogous to a disputed question regarding the inter- 
pretation of a statute. Though the meaning of a sta- 
tute may have been doubtful until determined by the 
Courts, the statute was operative from the first, and is 
rightly applied to ascertain the validity of rights which 
accrued before its meaning was determined. 

We have thus to examine three Sources of Law — 
the Governing Person or Body, the Magistrate, and 
the Jurists or Legal Profession. These are the three 
recognized and permanent legislative organs of a com- 
munity. Every mode of creating law discoverable in any 
organized community may be reduced to one of these, 
and in most civilized communities all of these may be 
found co-existent. Sometimes, however, one or other 
is either absent or is present in a quite rudimentary 
condition. In the East, as for instance in such coun- 
tries as Turkey or Persia, there is little that can be called 
general legislation. Hatts are no doubt occasionally 
promulgated by the Sultan, though they are sometimes 
not meant to be observed, and are frequently not in fact 
observed. So far as new law is made, it is made by the 
learned men who study and interpret the Koran and the 
vast mass of tradition which has grown up round the 
Koran. The existing body of Musulman law has been 
built up by these doctors of law during the last twelve 
centuries, but chiefly in the eighth and ninth centuries 
of our era : and a vast body it is. The Kadi or judge is 
himself a lawyer, and he might mould the system by his 
decisions, but decisions are not reported, and the au- 
thority of a Kadi is deemed lower than that of one of the 
more learned Muftis or doctors of the law. On the other 
hand there are countries, such as Russia for instance, 
where the direct promulgation of his will by the Sove- 
reign is the only recognized form of legislation, the 
decisions of judges and the opinions of legal writers en- 



ROMAN AND ENGLISH LEGISLATION 075 

joying a much lower authority. In. other countries, as in 
Germany, legal writers are numerous and influential, but 
the magistrates, their decisions having been but little 
reported, have, till our own time, held for the most part 
a subordinate place, and played a comparatively small 
part in the development of law. This was at one time 
the case in France also, where cases decided by the 
higher courts of law used to stand little, if at all, above 
treatises composed by legal writers of established repu- 
tation. Nowadays, however, cases are more fully re- 
ported, and an authority is accorded to decisions scarcely 
lower than that which they have long enjoyed in England 
and America. 

At Rome, and also in England, all these three main 
Sources or Organs have existed in full force and effi- 
ciency, though not in equal efficiency at different periods 
in the history of either State. At Rome, as in England, 
we begin with customary law. The customary law of 
the Quirites is known to and administered by a small 
privileged class ; and so far as there is any legislation 
at all, it is the work of members of this class who carry 
in their minds and expound and insensibly amplify the 
sacred traditional ordinances. Then direct legislation by 
the people in their assemblies, and afterwards (though 
in its germ perhaps almost concurrently) the law-making 
action of the magistrate begin to appear. They go on 
hand-in-hand for many centuries, seconded by the never 
intermitted labours of the jurists, until at last the magi- 
strate's work is over, the jurists have lost their impulse 
or their skill, and the direct activity of the Sovereign 
(who is by this time a monarch) becomes the chief sur- 
viving fountain of law. I propose to take these three 
sources and compare the way in which they acted in the 
Roman city and Empire with their action and develop- 
ment — in many respects parallel, in a few respects con- 
trasted — in England, whose law has now spread over a 
large part of the British Empire. 



676 ROMAN AND ENGLISH LEGISLATION 



II. Jurists as Makers of Law. 

Let us begin with the Jurists, since they are the first 
repositories and interpreters of those customs out of 
which law grew. One may distinguish three stages in 
their attributes and their action at Rome. In the first 
stage, during the days before the enactment of the 
Twelve Tables, and even after that date down to the 
third century, b.c, they were a small body of men, all 
of them patricians, and some of them priests, retaining 
in their memory and transmitting to their disciples a 
number of rules and maxims, often expressed in some 
carefully phrased and scrupulously guarded form of 
words, such as the lex horrendi carminis, which Livy 
quotes in his account of the trial of Horatius for killing 
his sister 1 . An important place among these rulers was 
held by the formulas which it was necessary to use in 
actions or other legal proceedings, the slightest varia- 
tion from the established phraseology of which would 
be a fatal error. Such knowledge, with the connected 
knowledge of the days on which ancient superstition 
forbade or permitted legal proceedings to be taken, was 
in these early times strictly reserved by its possessors 
to their own class, as a sacred deposit of political as well 
as religious importance. 

In the following period, which may be said to extend 
till the end of the free Republic, these restrictions va- 
nished. The progress of the plebeians in political power 
as well as in wealth made it impossible to exclude them 
from the possession of legal lore. Some plebeians be- 
came no less distinguished as sages of the law than 
patricians had been ; indeed Tiberius Coruncanius, the 
first plebeian chief pontiff, is occasionally described as 
the founder of the later school of scientific lawyers. 
He is said to have been the first person who offered him- 
self to the public as willing to advise on legal questions. 

1 Book i. chap. 26. 



ROMAN AND ENGLISH LEGISLATION 677 

The profession attracted many able and ambitious men, 
because it was one of the three recognized avenues to 
high office, the alternative to arms and to political ora- 
tory. One may fairly call it a profession in this sense, 
that those who adopted it made it the main business 
of their life, and by it won their way to fame and influ- 
ence. But it was not such a profession as the bar is in 
modern countries, not a gainful profession whereby a 
fortune could be amassed, not a close profession into 
which entrance is granted only upon definite terms and 
subject to definite responsibilities. Any man who liked 
might declare himself ready to give legal advice or settle 
legal documents. He had no examination to pass, no 
fees to pay, no dinners to eat. He acquired no right 
of exclusive audience of the Courts ; he became amena- 
ble to no jurisdiction of his compeers or of any con- 
stituted authority. The absence of these things did not, 
however, prevent the Roman lawyers from having a 
good deal of what might be called professional feeling, 
a high sense of the dignity of their calling, and a warm 
attachment to the old forms and maxims of the law. 
These Republican jurists composed treatises, only a few 
scattered extracts from which have come down to us, 
and gave oral teaching to the disciples who surrounded 
them while they advised their clients, as they sat in state 
in the halls of their mansions. 

With the fall of the Republic there begins a third 
period which covers about three centuries. It had been 
the custom for a man who had a point of law to argue 
before a index 1 trying a case to endeavour to obtain 
from some eminent jurist an opinion in his favour, which 
he produced to the index as evidence of the soundness 
of the view for which he was contending. Now Augus- 
tus, partly to enlarge and inspirit the action of the 
jurists, partly to attach them to the head of the State, 

r l The index (who is not to be thought of at this period as a judge in our sense- 
he is more like a jury of one, or a referee) was not necessarily a skilled lawyer, and 
therefore was presumably not competent to decide a knotty technical point by the 
fores of his own knowledge. 



678 ROMAN AND ENGLISH LEGISLATION 

permitted certain of the more eminent among them to 
give rcsponsa, i.e. answers or opinions on points of law, 
under and with his authority, directing such opinions, 
when signed and sealed, to be received by a index trying 
a case as settling a controverted point. His successor, 
Tiberius, issued formal commissions to the same effect 1 . 
Here we enter the third stage, for from this time forward 
not only did it become obligatory on the index to defer 
to an opinion given by one of the ' authorized ' jurists, 
but there was also created an inner privileged order 
within the whole body of jurists, this inner order con- 
sisting of those, usually no doubt the most conspicuous 
by learning and ability, who had obtained the imperial 
authorization. And out of this privileged class the Em- 
peror was apparently accustomed to choose the great 
judicial officers of state, the praetorian prefect — in later 
times the quaestor also — the members of the Imperial 
Council, and possibly the chief judicial magistrates of 
the provinces, so that the career of a jurist continued 
to be, though in a somewhat different form, one of the 
main paths to distinction and power. Oratory, which 
had formerly swayed the people, was now practically 
confined to the Senate and the Law Courts, and thus 
became separated from politics : for even in the Senate 
few ventured to speak with freedom. As the profession 
of law was now the chief rival to the profession of arms 
it drew to itself a large part of the highest ability of the 
Empire. After the great decline in literature and art 
which marks the period of the Antonines, the standard 
of learning, acuteness, and philosophical grasp of mind 
among the jurists still continued to be high. Even their 
Latin style is more pure and nervous than we find 
among other writers of the third century. The period of 

1 The precise nature of the action taken by Augustus and Tiberius is the subject 
of some controversy, as to which see Goudy's edition of Muirhead's History of 
Roman Law, p. 292, Sohm, Institutionen, § 18, and Kriiger, Geschichte der Quellen 
des Rbmiscken Rechts, § 15. Responsa had been given in earlier days by the Pon- 
tifices, and Augustus was Pontifex Maximus. As to a similar practice among 
Muslims see Essay XIII, p. 663 ante. 



ROMAN AND ENGLISH LEGISLATION 679 

their productive activity — that which we commonly call 
the classical period of Roman Law — may be said to close 
with Herennius Modestinus, who was praetorian prefect 
about the middle of the third century of our era. There- 
after we possess only a few names of notable jurists, 
scattered at long intervals, and apparently inferior to 
their predecessors. 

Although throughout these three periods the jurists 
may fitly be described as a Source of Law, their func- 
tion was by no means the same from the beginning till 
the end. In the first period they were the depositaries 
of a mass of customs which changed very little ; and they 
did not so much create law as give a definite shape and 
expression to it in the carefully phrased rules and un- 
varying formulas which each generation handed down to 
the next. The events and circumstances of the second 
period, which saw the knowledge of the old customs 
much more widely diffused, and saw also a considerable 
growth of statute law, threw upon them the duty of ex- 
pounding both customs and statutes, and of covering 
the ground which neither customs nor statutes had oc- 
cupied. This meant a good deal in a thriving and ex- 
panding community, so the interpretatio iuris (as the 
Romans call it) which they describe as the chief service 
rendered by these legal sages, became large in quantity, 
though it was almost entirely confined to the filling up 
of interstices, and did not attempt to produce new prin- 
ciples or lay down broad rules. Its authority, more- 
over, was a purely moral authority, based upon nothing 
but the respect paid to the intellect and learning of the 
particular jurist from whom some doctrine or dictum 
emanated, regard being of course had to the length of 
time during which, or the approval of the profession 
with which, a doctrine or dictum had been accepted. 
With the introduction in the third period of a specific 
commission from the Emperor, the jurist, that is the 
authorized jurist, became recognized as competent to 
make law (iuris conditor). He acted only by interpreting, 



680 ROMAN AND ENGLISH LEGISLATION 

i.e. by delivering an opinion on a point previously doubt- 
ful, but his decision, once given, had an authority inde- 
pendent of his personal fame, the authority of the Em- 
peror himself, by this time a source of law through the 
magisterial powers conferred upon him for life. Let 
us note further, that whereas in the earlier part of the 
second period it was largely through the modelling of 
the system of actions and pleading that the influence of 
the jurists was exerted, in the later part of that period 
and during the whole of the third, it was chiefly by means 
of their writings that they developed the law. Most of 
these writings were the work of men who enjoyed the 
ins respondcndi; yet some of those who belong to a time 
before that right began to be granted carry no less 
weight. Antistius Labeo does not seem to have en- 
joyed it, but he is always quoted with the greatest re- 
spect, and it seems doubtful whether it was possessed, by 
Gaius, who was, centuries after his death, placed among 
the five most authoritative writers. 

It does not here concern me to enlarge upon the la- 
bours of the great legal luminaries of the earlier Em- 
pire, either as writers of treatises (it is in this capacity 
that we know them best, from the fragments of their 
works preserved in Justinian's Digest) or as advisers of 
the Sovereign, assessors in his supreme Court of Appeal, 
and prompters of his legislative action. For the present 
purpose it is sufficient to suggest some reasons which 
may account for the more considerable part which the 
Roman jurists played as a source of law than that which 
can be attributed to legal writers in England. Though 
some few of our English treatises are practically law, 
constantly cited and received as authorities — Coke upon 
Littleton supplies an example from former times, and 
Lord St. Leonards on Vendors and Purchasers from 
our own — they are not to be compared in point of quan- 
tity or importance with the text-books out of which 
Justinian's compilation was framed. In earlier days it 
was no doubt different. The writings of Glanvill and 



ROMAN AND ENGLISH LEGISLATION 681 

Bracton, with the book ascribed to Britton and the trea- 
tise called Fleta, were all to some extent recognized as 
law in the fourteenth century ; that is to say, they would 
have powerfully, and in most doubtful cases decisively, 
influenced the mind of any judge to whose knowledge 
they came when he had to determine a point of law. 
In that age there was no such distinction drawn be- 
tween what is and what is not legally binding as the 
wider experience and the more precise analysis of mo- 
dern times has made obvious to our minds. Moreover, 
in an age when customs were still uncertain, because 
largely fluid and imperfectly recorded, the statement of 
what a writer held to be law had an incomparably greater 
force than in later days. And it may be added that the 
extracts from the Roman Law, of which Bracton's 
treatise, for instance, is full, would, at least to the eccle- 
siastical lawyers, carry with them the authority of the 
Roman law itself. After the fifteenth century, compara- 
tively few books hold a place of authority ; and perhaps 
the best example of those which do is Littleton's Treatise 
on Tenures. By this time the abundance of reported 
cases began to make it less necessary to have recourse 
to treatises ; nor was the writing of them a favourite 
occupation of the earlier common lawyers. 

III.' Difference between the Action of Roman 

AND THAT OF ENGLISH JURISTS. 

What are the causes of this singular difference be- 
tween the course of legal development in England and 
that which it took in Rome? The most obvious is 
the different position in which the imperial commission 
placed certain of the more eminent jurists. They were 
thereby practically erected into legislators, for their for- 
mally expressed opinions were treated as though pro- 
ceeding from the Emperor himself, and the Emperor was 
from the first virtually, and afterwards technically also, 
a fountain of legislation. True it is that this authority 



682 ROMAN AND ENGLISH LEGISLATION 

was not at first extended to the treatises of these jurists. 
It attached, at least in earlier days, only to the responsa 
which they had authenticated by their seal, and a re- 
sponsum probably carried authority only for the particu- 
lar case in which it was delivered. But nothing was 
more natural than that its weight should be accepted 
for all purposes, and that the utterances of the privileged 
jurists, whether contained in a collection of responsa 
or in any other kind of law-book, should command a 
deference seldom yielded to any private writer, however 
eminent. Nor does the fact that both in their responsa 
and in their other writings these jurists differed from 
one another, maintaining opposite views on many im- 
portant points, seem to have substantially detracted 
from their influence. Such divergences were indeed, 
down to Justinian's time, a source of embarrassment 
to practitioners and judges. Looking at the thing as a 
matter of theory, we may wonder how the inconvenience 
could have been borne with, for unless a statute was 
passed settling a controverted point, the point might 
remain always controvertible. But this is one of the 
many instances in which we find that a system which 
seems, when regarded from outside, unworkable, did in 
fact go on working. Probably, when the controversy 
was one of importance, there came after a time to be 
a distinctly preponderating view, which practically set- 
tled it ; and possibly the sense of responsibility under 
which the authorized jurists wrote contributed to make 
them not only careful but guarded and precise in the 
statement of their conclusions. 

Another cause for the greater relative importance of 
the Roman jurists as creators or moulders of law may 
be found in the social position of the legal profession 
at Rome. In England the profession is and always has 
been followed primarily as a means of livelihood. Out 
of the many who have failed to find it remunerative, 
some few have devoted themselves to study and have 
enriched our jurisprudence by valuable treatises. But 



ROMAN AND ENGLISH LEGISLATION 683 

the general tendency has been for the men of greatest 
mental vigour and diligence, and also for the men of 
the widest practical legal experience, to be so com- 
pletely absorbed by practice as to have no leisure for 
the composition of books. English law-books are writ- 
ten mostly by young men who have not yet obtained' 
practice, or by older men who through the negligence 
of Fortune, the undiscernment of solicitors, or perhaps 
some deficiency in practical gifts, have never succeeded 
in obtaining it. In some remarkable instances they are 
the work of persons whose eminence has raised them to 
the judicial bench. But they are hardly ever written, 
and indeed could scarcely be written, by the men in full 
practice, yet such men have the great advantage of being 
in daily contact with the working of the law as a con- 
crete system, and they include, not indeed all, but a 
great part of the best legal talent of each generation. 
At Rome, however, the jurist of republican days, mak- 
ing no gain from his professional work, and not needing 
it, for he was a man of rank and means, took practice 
more easily, and devoted a good deal of his time to the 
literary side of his life. Thus we are told that Labeo 
spent half his year in Rome giving instruction to his 
disciples and advice to his clients, the other half in the 
country composing his admirable treatises. Under the 
Empire the profession doubtless attracted a large num- 
ber of persons of lower station and smaller means. But 
the habit of writing and of teaching went on among the 
leaders. 

In this habit of teaching we may find a further reason 
for the prominence of the jurist. The giving of oral 
instruction in law to those who were preparing them- 
selves for its practice, was at Rome always an important 
branch of a jurist's activity. Cicero tells us how he 
and others among the youth of his own generation stood 
as disciples round the chair of Mucius Scaevola, gather- 
ing the crumbs of legal wisdom which dropped from 
his lips, putting questions and doubtless taking notes 



684 ROMAN AND ENGLISH LEGISLATION 

of the explanations which the sage deigned to give. 
Other leading luminaries were surrounded by similar 
groups. Two centuries later, Gaius is generally thought 
to have been a teacher of law, and won his high repu- 
tation largely by the educational treatise which has come 
down to us. And in still later times the two great law 
schools of Beyrut and Constantinople were the chief 
homes of legal learning, and those who lectured in them 
among the chief legal lights of the Roman world. Four 
members of the Commission which prepared the Digest 
were chosen by Justinian from among these teachers, 
and given the place of honour next after Tribonian, the 
president of the Commission. In England, on the other 
hand, legal teaching had during the last century and a 
half fallen sadly into abeyance, and has only within the 
last few years shown signs of reviving. Yet it is clear 
that the practice of teaching is of the utmost value for 
the composition of treatises, not only because it sup- 
plies a motive and an occasion, but also because it tends 
to make a book more systematic and lucid, since the 
teacher feels in lecturing the paramount necessity of 
logical arrangement and of clear expression. The best 
survey, at once concise and comprehensive, of English 
law that has ever appeared — Mr. Justice Blackstone's 
book — was founded on oral lectures given in Oxford : 
and the great works of Chancellor Kent and Justice 
Story in America had a like origin. The merits of these 
two last-named writers are just the kind of merits which 
the habit of teaching tends to produce. Nor ought we 
to forget a more recent example, the small but emi- 
nently acute and suggestive volume of lectures on the 
Common Law of Mr. Oliver Wendell Holmes, now Chief 
Justice of Massachusetts. 

The main cause of the smaller number in England 
of legal writers who have taken rank as Sources of Law, 
is doubtless to be sought in the fact that the highest 
juridical talent of the most experienced men has with 
us poured itself through a different channel, finding its 



ROMAN AND ENGLISH LEGISLATION 685 

expression in the decisions of the Judges. It is our 
series of 8 Reported Cases, now swollen to many hun- 
dreds of volumes, a mass of law so large that few lawyers 
possess the whole of it, that really corresponds to the 
treatises of the great Roman jurists. The Reports fill 
a place in English legal studies corresponding in a gene- 
ral way to that which those treatises filled in the Roman 
Empire. They are the work of a similar class of men, 
those who from active practice have risen to the highest 
places in the profession. Men in such a position have 
rarely the leisure to occupy themselves with writing 
law-books, nor have they usually an impulse to do so, 
since what they have to say can be adequately delivered 
in their spoken or written judgements. And though the 
merits of our English judicial decisions are not alto- 
gether the same as those of the great Roman text-books, 
still the judgements of the most eminent judges will, if 
taken as a whole, bear comparison either with those 
text-books or with any other body of law produced in 
any country. In logical power, in subtle discrimination, 
in breadth of view, in accuracy of expression, such men 
as Lord Hardwicke, Lord Mansfield, Lord Stowell, 
Sir William Grant, Mr. Justice Willes, Sir George 
Jessel, Lord Cairns, and Lord Bowen, to take a 
few out of many great names, may fairly rank side 
by side with Papinian or Ulpian, with Pothier or 
Savigny. 

This is not the place for an attempt to estimate the 
respective advantages of case law and text-book law. 
But it may be remarked that they have more in com- 
mon than might at first sight appear. English text- 
books are almost entirely a collection of cases with 
comments interspersed. Sometimes a general rule is 
stated which may go a trifle further than the cases do; 
sometimes an opinion is thrown out on a point not 
covered by authority. Still the cases are the gist of 
the book. I have heard an eminent judge * of our own 

1 The late Lord Justice W. M. James. 



686 ROMAN AND ENGLISH LEGISLATION 

time observe that the easiest way to codify the law of 
England would be to enact that some eight or ten es- 
tablished text-books, such, for instance, as Jarman on 
Wills, Chitty on Contracts, Williams on Executors, 
Lindley on Partnership, Smith's Mercantile Law, Sug- 
den on Powers, Smith's Leading Cases, Hawkins on the 
Interpretation of Wills, Dicey on Domicil, should have 
the force of statutes. To do this would add little to the 
volume of the existing English law, for the text-books 
mentioned are in reality digested summaries of decisions 
that lie scattered through the Reports. And similarly 
the treatises of the Roman lawyers contain a large num- 
ber of cases, i.e. opinions given by eminent lawyers upon 
sets of facts laid before them or imagined by them in 
order to show the application of a principle. The Ro- 
mans themselves attribute high authority to a concur- 
rent line of decisions 1 ; and doubtless decisions given 
by magistrates or by emperors found their way into, 
and influenced the text-books, though we do not know 
what means were taken of recording them. In fact the 
difference between the English and the Roman system 
resides chiefly in two points. With us the binding force 
of a rule depends on its having been actually applied to 
the determination of a concrete case. With the Ro- 
mans an opinion delivered in a res indicata is not neces- 
sarily weightier than if it was delivered in any other 
way. It is valid simply because it proceeds from a high 
judicial authority. Probably in early imperial days there 
was a difference between the force of a jurist's responsum 
signed, sealed, and produced to a index, and an opinion 
expressed in any other way by the same jurist, like our 
distinction between so much of a judgement as is needed 
for the decision of the case and the accompanying obiter 
dicta. But any such difference seems to have presently 
disappeared. And secondly, while the opinions on points 
of law of English jurists are scattered here and there 
over hundreds of volumes, with only a chronological 

» Dig. i. 3. 38. 



ROMAN AND ENGLISH LEGISLATION 687 

arrangement, those of Roman jurists were gathered into 
systematic treatises. 

The Roman system has the merits of logical arrange- 
ment, of consecutiveness, of conciseness ; the English, 
wanting these, has advantages in being so copious as 
to cover an immense variety of circumstances, and in 
consisting of opinions delivered under the stress of re- 
sponsibility for doing justice in the particular case. It 
presents moreover to students an admirable training 
in the art of applying principles to facts. Both systems 
have the defect of uncertainty, because under both there 
may be a conflict of views resting on equal authority. 
Broadly regarded, both may be said to spring from the 
same source. According to German writers, the law 
made by the jurists springs from what these writers 
call the ' legal consciousness of the people,' and derives 
its ultimate authority from Custom, i.e. from the tacit 
acceptance by the people of certain doctrines and rules. 
We in England dwell upon its formal recognition by 
the Courts as the proof of its authority. But in both 
cases that which becomes recognized as law has passed 
through and been shaped in the workshop of Science. 
It is the learning and skill of trained professional stu- 
dents, whether English judges or Roman text-writers, 
that has done the work which the people, or the Courts 
for the people, have accepted. 

IV. Magistrates and Judges as Makers 
of Law. 

We come now to consider the second of the three 
great sources of law, the Official or Magistrate. He 
holds an intermediate place between the Jurist on the 
one hand, and the Supreme Power, whether an Emperor 
or a Parliament, on the other, speaking with more of 
plenary authority than the former and with less than 
the latter. He may at first sight appear to be not really 
a species by himself, but merely a particular instance of 



688 ROMAN AND ENGLISH LEGISLATION 

legislation by the Supreme Power in the State, acting 
not directly (i.e. not as itself enunciating legal rules) but 
mediately, by delegating its function of legislation to a 
person clothed with its authority and speaking in its 
name. 

This view has in fact been held by some writers. That 
it is, however, an erroneous view will appear, when we 
come to scrutinize the Roman facts as the Romans 
understood them, and the English facts as they were un- 
derstood in the fifteenth century. Delegation by the 
supreme legislative authority to some officer or magi- 
strate no doubt may, and frequently does, take place. 
In England, for example, Acts of Parliament sometimes 
commit the duty of making rules to an official, such as 
the Lord Chancellor, or to such a body as the Council 
of Judges of the Supreme Court of Judicature, or to the 
Privy Council, that is to say, to a Minister advised by 
his permanent official staff, who procures the approval 
of the Crown in Council to what he issues in the form of 
an Order in Council 1 . Where the function is so dele- 
gated, the rules or ordinances made in pursuance of the 
statute have the full force of the statute that gave power 
to make them. Here the phenomenon is too common 
and too simple to need explanation or discussion. It is 
quite another thing to maintain that the legislative action 
of the Magistrate is always of this character, a mere in- 
stance of the exercise of delegated power. The view 
is not historically true of the Roman Magistrate — Prae- 
tor, Censor, Aedile, or whatever else he may be, firstly 
because he did not in fact receive any such delegation 
from the people ; secondly, because nobody supposed 
him to have received it. He was always distinctly con- 
ceived of as acting by his own authority, whatever that 
may be, a matter to which we must presently return. 
It is not true of the English Judge — whether of the 
indices terrae of the Common Law Courts when they take 

1 Orders in Council are also issued in certain cases under the prerogative of the 
Crown without statutory Jiilsgation. 



ROMAN AND ENGLISH LEGISLATION 689 

shape in the twelfth and thirteenth centuries, or of the 
Chancellor of the fifteenth, or of indeed their modern 
successors, seeing that the theory of the English law and 
constitution has remained in these points, at least, sub- 
stantially unchanged. That theory is that the judges of 
the Common Law Courts are nothing more and nothing 
less than the officers who expound and apply the Com- 
mon Law, a body of usages held to be known to the 
people and by which the people live, usages which ex- 
isted, in their rudimentary state, as far back as our 
knowledge extends, most of which have not been for- 
mally embodied in any legislative act, but which have 
been always recognized as binding. Such customary 
rules are not law because they are declared to be so by 
the judges ; on the contrary the judges enforce them 
because already, antecedently to their decision, binding 
law. The judges have never received delegated au- 
thority from Parliament. ' So far as authority has been 
delegated to them it is the authority of the Crown. 
But the Crown cannot empower them, and never pur- 
ported to empower them, to make the law. This is 
abundantly clear regarding the Common Law Courts, 
who are merely the exponents of the customs of the 
land. 

The case of the mediaeval Chancellor is rather dif- 
ferent. He is rather more than an exponent of the law. 
He virtually creates law by his executive action. But 
he does not do so by any expressly delegated power. 
At a time when it was well settled that the Crown alone 
could not (except possibly in some few directions — and 
even this was not admitted by the House of Commons) 
legislate, Parliament, so far from giving even by impli- 
cation any authority to the Chancellor, was jealous of 
and tried to fetter his action. To allege that what are 
called the legislative functions of any English judge 
arise from a commission given him by the Supreme 
Power, i.e. Parliament, to exercise them, is an inversion 
of historic truth and legal doctrine, an attempt to sup- 
44 



690 ROMAN AND ENGLISH LEGISLATION 

port a false theory by imaginary facts 1 . It is easier and 
safer to look at our system in the aspect it bore to those 
who witnessed the earlier stages of its growth, and to 
recognize the existence of a peculiar form of law-mak- 
ing — that which naturally and inevitably arises out of 
the application and administration of the law, especially 
where that law is largely customary, not embodied in 
formal declarations of a sovereign's will. If therefore 
we are to have a theory of the position of the Magistrate 
or Judge, a definition of his functions, we must rather 
call him (however vague the expression may appear to 
those who prefer the phantom of precision to the sub- 
stance of truth) the recognized and permanent organ 
through which the mind of the people expresses itself 
in shaping that part of the law which the State power 
does not formally enact. He is their official mouthpiece, 
whose primary duty is to know and to apply the law, 
but who, in applying it, expands it and works it out au- 
thoritatively, as the jurists do less authoritatively. He 
represents the legal intelligence of the nation, somewhat 
as upon one theory of papal functions the bishop of the 
old imperial See represents the religious intelligence and 
spiritual discernment of the Christian community on 
earth ; and therefore, like the Pope, he represents the 
principle of that development which it is his function 
to guide. As the Romans call their Praetor the living 
voice of the law, so is the Magistrate always, in Eng- 
land as at Rome, the voice whereby the people, the 
ultimate source of law, shape and mould in detail the 
rules which seem fitted to give effect to their constant 
desire that the law shall be suitable to their needs, a 
just expression of the relations, social, moral, and eco- 
nomic, which in fact exist among them. The Magi- 
strate is by no means their only voice, for they also 

1 If the view in question is defended as being if not historically true yet a con- 
venient analysis of the actual facts of the case in modern England, the answer is 
that the Judge, as we know him to-day, can be represented as a delegate of Par- 
liament only by arguing that Parliament commands whatever it does not forbid — 
a way of making facts square with a pre-conceived theory, which is not only op- 
posed to English traditions, but essentially unreal and fantastic. 



ROMAN AND ENGLISH LEGISLATION 691 

express themselves, especially upon urgent questions, by 
direct legislation ; and the more they get accustomed 
to do so, the narrower does the province of the Magi- 
strate become. But there are many things which legis- 
lation cannot do in the earlier stages of a State's growth, 
partly because proper machinery is wanting, partly be- 
cause political dissensions intervene, partly because 
legal ideas are still fluid, fluctuating, and unfit for expres- 
sion in terms at once broad and definite. Moreover, 
in even the most highly organized States, some things 
always remain which a legislature cannot conveniently 
deal with, or where its action needs to be constantly sup- 
plemented, and perhaps even corrected, by some organ 
which can work in a more delicate and tentative manner. 

So much — that I may not further illustrate what will 
become clearer from a survey of the Magistrate as he 
has appeared in history — may be said of Legislation by 
a State Official in general, whether he be a Roman 
Magistratus or an English Chancellor. Now let us come 
to the Roman Praetor. 

In the early days both of Rome and of England the 
administration of justice belonged to the chief magi- 
strate of the State and to the assembly of the people, 
who in the very earliest days had normally acted to- 
gether. In England, although the judicial functions of 
the Assembly survived for some purposes (as they sur- 
vive to-day in Parliament), the conduct of ordinary ju- 
dicial work which could not conveniently be exercised 
by the Assembly passed to the king, and when judges 
appeared, they were his officers. In Rome also the king 
was the head of the judicial system : and when the kingly 
office was abolished, the functions that had been his 
were transferred to the two Consuls, who were virtually 
annual kings. After a time, owing to political disputes 
which need not be described here, a third annual magi- 
strate was added, called the Praetor x , who, while capable 

1 The name Praetor meant Leader, and was originally applied to the Consuls. 
The Praetor's competence for military functions was equal to that of the Consuls. 
He had both imperium and iurisdictio. 



692 ROMAN AND ENGLISH LEGISLATION 

of exerting nearly all the executive power of the Con- 
suls, received the administration of justice as his special 
province. As the city grew and litigation increased, 
more Praetors were added. The first had been ap- 
pointed in B.C. 367; the second, who presently became 
charged with suits in which one or both of the parties 
did not enjoy Roman citizenship, dates from about B.C. 
247. He came to be called Praetor peregrinus, while the 
original Praetor was described as the Praetor of the 
City (urbanus). The latter remained the head of the 
judicial system, and I shall therefore speak of the Prae- 
tor in the singular. Other Praetors were added, partly 
in order to act in the provinces, partly in order to under- 
take special kinds of jurisdiction. By the time of Trajan 
there were eighteen of them. 

In the later republican period we may speak of the 
Praetor as being partly a Judge, partly a Minister of 
Justice who directed the general working of the Courts. 
It was his duty to issue when he assumed office a state- 
ment of the rules by which he intended to guide his 
judicial action during his year, as well as a table of the 
formulae in which applications ought to be made to him 
for the exercise of his functions. These rules were pub- 
lished in a document called the Edict. It contained 
a concise statement of the cases in which he would 
allow an action to be brought, and of the pleas which 
he would admit as constituting defences to actions. 
This statement did not purport to supersede the old 
actions and rules which had either come down as a set- 
tled part of the ancient customary law, or had been 
enacted by any statute of the popular assembly. The 
Praetor always held himself to be bound by statutes 1 . 

1 The Praetor, said the Romans, does not make law (Praetor iusfacere non po- 
test). Yet they also called the rules which emanated from him iura (see Cic. De 
Invent, ii. 22) : and the whole body of rules due to his action was in later times 
described as ius honorarium, ius praetor ium. Sometimes a right resting on ius is 
contrasted with one depending on the protection (initio) of the Praetor: Ulpian in 
Dig. vii. 4. 1. Those who put the Praetor's authority highest called the Edict lex 
annua, says Cicero, Verr. ii. 1. 42. This uncertainty of language corresponds to 
the peculiar character of these rules, which in one sense were, and in another were 
not, Law. 



ROMAN AND ENGLISH LEGISLATION 693 

But his Edict added materially to the old actions and 
rules, incidentally modified them, ultimately did super- 
sede many of them. He awarded remedies which the 
older law had not awarded. He recognized defences 
(e.g. in cases of fraud) which the old law had not recog- 
nized. He provided means of enforcing rights more 
effective than those which the old law had provided. 
As the later Romans said, he acted for the sake of aid- 
ing, or supplying the omissions of, or correcting, the 
old strict law, with a view to the public advantage 1 . 

Each Edict was valid only for the Praetor's year of 
office. Each succeeding Praetor, however, usually re- 
peated nearly all the declarations that had been con- 
tained in the Edicts of his predecessors, though it often 
happened that a new Edict introduced some improve- 
ment in point of form and expression, or perhaps so 
varied, or added to, the announcements in the last pre- 
ceding Edict as to introduce an improvement in sub- 
stance, for when a Praetor thought that it was necessary 
to promise a new remedy by action, or to recognize a 
new plea, it was his duty to insert it. In this way the 
practice of the Courts was continually changing, yet 
each single change was so slight that the process was 
very gradual, hardly more rapid than that which has 
gone on, at certain periods in the history of English 
law, through the action of the Court of Chancery, or 
that which went on in the Court of King's Bench under 
Lord Mansfield. There was no permanent enactment 
of a new rule, for a Praetor's declarations bound him- 
self only and not his successors 2 . But as his promises 
were usually repeated by his successors, a Praetor when 

1 ' Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel 
corrigendi iuris civilis gratia propter utilitatem publicam.' Papinian in Dig. i. i. 7. 

3 His declarations did not originally, in strictness of law, bind even himself, and 
it was found necessary to enact, by a lex Cornelia of B.C. 67, that the Praetor should 
not depart from the statements of his Edict (' ut praetores ex edictis suis perpetuis 
ius dicerent, quae res cunctam gratiam ambitiosis praetoribus qui varie ius dicere 
solebant, sustulit.' Ascon. in Cic. Pro Cornelio, 58. 

The Edict regularly issued at the beginning of each year was called Edictum 
perpetuum, as opposed to Edictum repentinum, one issued for an emergency. 



694 ROMAN AND ENGLISH LEGISLATION 

he promised a new remedy, practically created a new 
right, or enlarged and confirmed an old one. 

To us moderns the function thus committed to a Magi- 
strate seems a large function, and his power a possi- 
bly dangerous power. No modern constitutional State 
would vest such a power either in a Judge or in a 
Minister of Justice. But to the Romans the Praetor is 
(above all things) the representative of the Executive 
and Judicial Power of the State. He is the State em- 
bodied for certain purposes. He is something more 
than a mere minister, whom the people have chosen to 
serve them in a certain capacity. He represents the 
majesty of the State over against the people, and deals 
with them rather as a Ruler than as a Servant. Few 
nations have formed so strong and definite a conception 
of State power as the Romans did; and none, perhaps, 
expressed it so distinctly in the authority, very wide, 
very drastic, and yet eminently constitutional, which 
they entrusted to their great State officials. The con- 
ception was to them so dear, or so necessary, that even 
when the misdeeds of a monarch had led to the aboli- 
tion of monarchy, they did not restrict the magisterial 
power itself, but divided it between two co-ordinate 
magistrates whose co-existence made each a check on 
the other ; and when the powers of these two (the Con- 
suls) were subsequently found to need limitation, they 
devolved upon other magistrates (the Tribunes) the 
right to step in and check the exertion in some particular 
instance of the consular power. 

The Praetor, therefore, having (like the Consul) im- 
perium (i.e. the power of issuing commands as an execu- 
tive officer, and of compelling obedience to them by 
putting forth material force), is a stronger personality 
than the English Common Law Judge, and can act more 
boldly and more effectively. We hear of no demand 
for a restriction of his functions, but only of a statute 
which checked arbitrary discretion by requiring him to 
administer the law in accordance with his Edict. More- 



ROMAN AND ENGLISH LEGISLATION 695 

over, while the English judge is, down till the Revolu- 
tion, an official removable by the Crown, the Praetor 
has no one over him, and has, therefore, not only a 
more unfettered discretion in carrying out his judicial 
and quasi-legislative mission, but also a clearer sense 
of his duty to do so, because this is the function which 
the nation expects him to discharge. The English Judge 
is primarily a judge, appointed to pronounce a decision : 
the Prateor is also an executive magistrate, placed at 
the head of the whole judicial administration of what 
was originally a small community, with the duty of pro- 
viding that the system works properly. His wider 
powers give him a sense of the obligation laid on him 
to see that justice is duly done, that the system of pro- 
cedure is such as to enable justice to be done, that 
wrongs for which there ought to be some remedy have 
some remedy provided against them ; in short, that the 
law as a machinery for setting things right and satisfying 
the demands of the citizens is kept in proper order, with 
such improvements and extensions as the changing 
needs of the nation suggest. His business is not merely 
to declare the law but to keep the law and its machinery 
abreast of the time. 

The functionary who in England offers the nearest 
analogy to the Praetor, an analogy which has been so 
often remarked that only a few words need be spent on 
it, is the Chancellor. The Chancellor of the fourteenth, 
fifteenth, and sixteenth centuries was the organ of the 
prerogative of the Crown on its judicial side, and as that 
prerogative was then very wide, he was thus invested 
with an authority half judicial, half administrative, not 
unlike that of the Roman magistrate. As it belonged 
to the Crown to see that justice was done throughout 
the realm, and the means for doing it provided, the 
Chancellor was expected and obliged to supply new 
machinery if the old proved inadequate, and this he did 
in virtue of an authority which, in its undefined width 
and its compulsive power, resembled the Roman im- 



696 ROMAN AND ENGLISH LEGISLATION 

perium. Accordingly when the development of the Com- 
mon Law Courts stopped in the fourteenth century be- 
cause the Common Law judges refused to go beyond 
the remedies which the Courts provided, and made only 
a limited and timid use even of their power of issuing 
new writs in consimili casu, the Chancellor went on. 
From the time of Edward the Third petitions to see 
right done, which had been previously addressed to the 
Crown, began to be addressed to the Chancellor, and 
the extraordinary range of his powers was expressed 
by the phrase that he acted in matterr of the King's 
grace and favour, that is to say, he acted where the 
subject could not demand a remedy as of common right 
from the ordinary Courts of the land. Thenceforward 
the range of action of the Common Law Courts did 
not so much need to be extended, though a certain 
slight measure of development continued in them even 
as late as the days of Lord Mansfield, whose extension 
of the scope of the ' Common Counts for money had 
and received to the use of the plaintiff ' has a faint fla- 
vour of praetorian methods. It was partly because the 
Common Law judges had halted that the Chancellor, 
if I may use a familiar expression, took up the running, 
and exerted the powers which the sovereign entrusted 
to him, and which, as keeper of the sovereign's con- 
science, he was held to be justified in exerting so as to 
provide fresh and efficient remedies for wrongs that 
defied either the rigid system of procedure or the feeble 
executive capacity of the Common Law Courts. During 
this period the Chancellor, though a judge, is also much 
more than a judge, and it is as a great executive officer, 
clothed with the reserved and elastic powers of the sove- 
reign, that he is able to accomplish so much. Yet his 
action is not so free as was the Praetor's, for he does 
not directly interfere with the pre-existing Courts. He 
may walk round them : he may forbid a plaintiff to 
use the judgements they give ; but he cannot remould 
their methods nor extend their remedies. The Praetor, 



ROMAN AND ENUL1SH LEGISLATION 697 

on the other hand, is in a certain sense the head of all 
Courts, so that his action covers the whole field of law. 
After a time, however, the creative energy of the Chan- 
cellor slackens, partly because the prerogative of the 
Crown was being narrowed, partly, apparently, from 
the example of the other Courts, for when Chancery 
decisions also began to be reported like those of other 
tribunals, he naturally felt himself more and more fet- 
tered by the record of the decisions of his predecessors. 
In the eighteenth century, precedents gather round the 
Chancellor and fence him in : he cannot break through 
so as to move freely forward on new lines of reform. 
He is like a stream which, as it deepens its channel, 
ceases to overflow its banks. 

Before I note a further point of difference between 
the Praetor and our English Judiciary, and a further 
reason why the development of the law by the latter 
was so much less bold, I must advert to one feature 
which the Roman and English systems have in common. 
In both law is made through the control of procedure. 
The Praetor promises to give a certain action, or allow 
a certain defence, in certain states of fact ; i.e. if a plaintiff 
alleges certain facts, the Praetor will allow him to sue, 
and will see that judgement is given in his favour should 
those facts be proved, while if a defendant alleges cer- 
tain facts, the Praetor will allow these to be set forth 
in a plea, and will see that judgement is given in his 
favour if the facts as stated in the plea are proved. 
Similarly the English Courts are concerned not with 
abstract propositions of law, but with remedies. It is 
by granting a remedy, i.e. by entering judgement for 
the plaintiff or the defendant in pursuance of certain 
reasons which they deliver publicly, that the Courts be- 
come sources of law. And though the Chancellor goes 
further than the Common Law Courts, because in the 
early days of his action he laid hold of a person under 
circumstances to which no rule of law had been pre- 
viously declared to apply, and compelled him to appear 



698 ROMAN AND ENGLISH LEGISLATION 

as defendant in a suit, yet the Chancellor also never de- 
livers a legal opinion except for the purpose of ex- 
plaining the decree which he issues for adjusting the 
rights of the parties to a concrete dispute. So far, there- 
fore, the Roman and the English officials moved on simi- 
lar lines. Both were concerned with remedies ; both 
acted through their control of procedure. 

V. The System of Praetorian Edicts as compared 
with English Case Law. 

Now, however, we arrive at a material difference be- 
tween the Roman and the English Magistrates. The 
English judge never goes beyond the concrete case 
which is before him. If he declares the law, he de- 
clares it by deciding on the particular question which 
has arisen between two individuals. He may incident- 
ally, if so minded, deliver a lecture on the law bearing 
on the subject, and may pass in review all the cases 
cited in argument. Still, his judgement is not intended 
to go beyond what is absolutely necessary for the settle- 
ment of that question, and his view of the law is not 
authoritative so far as it strays into cognate but distinct 
topics. It is only the ratio decidendi that can be quoted 
as an authority. No dictum thrown out incidentally is 
of binding force ; and those who in the future have to 
deal with his decision are often able to narrow down 
the ratio decidendi to a very fine point, and show that it 
turned so much on the special facts of the case as to be 
of little importance as a precedent. But the Praetor 
speaks generally. In the Edict which he issues at the 
beginning of his term of office he lays down a rule, in- 
tended from the first to be applicable to a large class of 
cases ; or, to speak more exactly, he makes a promise 
and announces an intention of dealing with a large class 
of instances. If the class were not a large one, he 
would not think it worth while to announce such an in- 
tention. He is thus led to take much more bold and 



ROMAN AND ENGLISH LEGISLATION 699 

conspicuous steps, and he may effect at one stroke a 
larger reform than any single decision of an English 
Court can ever cause. He is far more distinctly aware 
of the fact that he is, though not formally legislating, 
yet taking action which may have the effect of changing 
the substance of the law. 

In other respects also, the fact that the Praetor's 
changes are formally enounced in his Edict potently 
and beneficially influenced his reforming action. He 
was. obliged to generalize and summarize. Where he 
had to set aside an ancient rule which had begun to 
be mischievous and deserved to be obsolete, instead of 
merely nibbling away at the edges of it as our English 
judges were apt to do, he dealt with it in a broad and 
intelligible way, either superseding it altogether or lay- 
ing down certain marked exceptions in which he de- 
clined to follow it. When he was establishing a new 
rule he had to consider how wide a field he desired to 
cover, what sets of instances were to be provided for, 
what was the common principle underlying those in- 
stances, how that principle must be expressed so as 
fairly to include them without including others which 
he had no wish to touch. The chief merit of a rule of 
law is that it should seize a feature which a large set of 
instances really have in common, and should effectually 
provide for them and for them only. The Praetor was 
moreover at the same time driven to be terse in the 
formulation of his promises, because the Edict was by 
tradition a comparatively short document, observing 
that stern brevity which the famous example of the 
Twelve Tables had made familiar and excellent in 
Roman eyes. Thus the results of his reforming action, 
the advance made at each step in the development of 
the law, were always presented in a clear, a compre- 
hensive, and above all a concise form, so that the pro- 
fession perceived exactly what had been done, were able 
to take the Edict as a subject for commentary and eluci- 
dation, and as a starting-point for further improvements. 



700 ROMAN AND ENGLISH LEGISLATION 

It was thus that the jurists treated it, seconding while 
also controlling by their opinion the action of the chief 
magistrate. He draws with a bold yet careful hand the 
outlines of the picture. They fill in the details, and so 
work round and over each of his summary statements 
as to bring out more fully all that it contained and in- 
volved, to trace his principles into their consequences 
and to illustrate their application. The action of the 
jurists was as essential to him as he was to them, for 
while their advice often prompted him, and while their 
elucidations and teachings developed the meaning and 
contents of what he laid down, their criticism reprobated 
any hasty or inconsequent steps into which zeal or self- 
confidence might betray him. Nor did such criticism 
remain fruitless. For it will be remembered as another 
feature of the Roman edict-issuing system, and indeed 
one of its most singular features, that each Edict was 
issued by each magistrate for his one year of office 
only, and had no validity thereafter. This was so be- 
cause he was not conceived to act as legislator, but 
only as an administrator whose commands, though they 
are not law in the strict sense, must be obeyed while 
his power lasts. At the end of the year they cease 
with that power, but his incoming successor may of 
course repeat them and give them another year of life, 
and so on from year to year and from generation to 
generation. 

Thus the Edict, so far as it can be called legislation, 
is tentative legislation. It is an experiment continually 
repeated; an experiment whose failure is a slight evil, 
but its success a permanent gain. Suppose the Praetor 
Sempronius to have introduced a new sentence into his 
Edict, promising to give an action in a particular set 
of cases. The profession doubt the merit of the sen- 
tence, canvass it, observe how it works, and before 
the end of the year come to one of three conclusions. 
They may approve it, in which case it will doubtless 
be repeated in next year's Edict. They may think it 



ROMAN AND ENGLISH LEGISLATION 701 

fundamentally wrong. Or thirdly, they may hold that 
though its object was good, that object has been sought 
in a wrong way. See then what happens if it has been 
disapproved. Next year a new Praetor — Cornelius — 
comes into office. In issuing his Edict he either omits 
altogether the obnoxious addition which Sempronius 
had made, or he so modifies it as to meet the objection 
which the jurists have taken. There is here none of the 
trouble, difficulty, and delay which arise when a statute 
has to be passed repealing another statute. There are 
not even those difficulties which occur under our Eng- 
lish system when a case wrongly decided has to be 
overruled. 

Observe how that English system works. A decision 
is given, perhaps hastily, or by a weak Court, which in 
a little while, especially after other similar cases have 
arisen, is felt by the bar and the bench to be unsound. 
There is a general wish to get rid of it, but it is hard to 
do so. People have begun to act on the strength of it ; 
it has found its way into the text-books ; inferior or pos- 
sibly even co-ordinate courts have followed it ; convey- 
ances or agreements have been drawn on the assumption 
that it is good law. The longer it stands the greater 
its weight becomes, yet the plainer may its unsoundness 
be. Cautious practitioners fear to rely on it, because 
they think it may someday be overruled, yet as they 
cannot tell when or whether that will happen, they dare 
not disregard it. Thus the law becomes uncertain, and 
not only uncertain, but also needlessly complex and 
involved, for later judges, feeling the unsoundness of 
the principle which this mischievous case has estab- 
lished, endeavour to narrow it down as far as possible, 
and surround it by a set of limitations and exceptions 
w T hich confuse the subject and perplex the student. The 
matter may have one of three ultimate issues. Either 
lapse of time and the unwilling acquiescence of subse- 
quent judges put its authority beyond dispute, as Mr. 
J. W. Smith says of a famous old instance, ' The pro- 



702 ROMAN AND ENGLISH LEGISLATION 

fession have always wondered at Dumpor's case, but 
it is now too firmly settled to be questioned in a Court.' 
Or else, after a while, the point is carried to a Court 
of higher rank which has the courage to overrule the 
erroneous decision, and resettle the law on a better 
basis. Or possibly — though this but rarely occurs — a 
statute is passed declaring the law in an opposite sense 
to that of the unlucky decision. But it may be long be- 
fore the second solution is found, partly because judges 
are chary of disturbing what they find, holding that it is 
better that the law should be certain than that it should 
be rational, and fearing to pull up some of the wheat 
of good cases with the tares of a bad case, partly because 
it may be a good while before a litigant appears willing 
to incur the expense of carrying the point to the higher 
and more costly tribunal. The third solution can be 
even less relied upon, for the legislature is busy and cares 
very little about the theoretical perfection of the law. 

Even when the bad decision has been got rid of, a 
certain measure of harm is found to have been done. 
The authority of other cognate decisions may be im- 
paired; transactions entered into, or titles accepted, on 
the faith of the case are shaken. One way or the other 
the law is injured. But on the Roman system these 
evils were, not indeed wholly, yet to a much greater 
extent avoided 1 . Not only is the error of one Praetor 
easily corrected by his successor, but the occasion re- 
curs year by year on which it must be either corrected 
or reaffirmed, so that a blemish is much less likely to 
be suffered to remain. If five or six successive Praetors 
have each of them in their Edicts repeated the provision 
introduced by one of their predecessors, men may con- 
fidently assume that it will be supported and perpetuated 
by those who come after, either in its original form or 
possibly in a more general form which will include its 



1 A particular case decided in a particular way under a provision of the Edict 
which was omitted next year would of course not be disturbed, for the Romans held 
firmly to the principle stare iudicatis. 



ROMAN AND ENGLISH LEGISLATION 703 

substance. There is no doubt some little temporary un- 
certainty during the first year or two, before the opinion 
of the profession has been unequivocally expressed. 
Such uncertainty can hardly be avoided in any system. 
But the fact that the Edict is annual gives ample no- 
tice that the provision is temporary and experimental, 
though, of course, fully valid during the particular year 
for which the Edict is issued. Thus the risk of mischief 
is reduced to a minimum. 

Our data are too scanty to permit us to trace either 
the first beginnings of the Praetor's action, or the de- 
tails of its working, or the changes which must unques- 
tionably have passed upon it during the three centuries 
and a half when its importance stood highest, say from 
the end of the First Punic War to the time of the Em- 
peror Hadrian (b.c. 241 to 117 a.d.). Even of the Edict 
itself, in its latest and most complete form, we have 
only fragments, and do not know by what stages it 
was brought to the perfection which led to its being 
finally settled in a form never thenceforward altered. 
This took place under Hadrian, when Salvius Julianus, 
a famous jurist who was Praetor at the time, gave it the 
shape in which it became permanent, an Edictum Per- 
petuum in a new sense; it was then enacted by a Senatus 
Consultiim, and in the form so enacted it was thereafter 
quoted and applied. Apparently, however, the effect of 
its enactment was not to make it a part of the general 
statutory law, but only to determine the form in which 
it was thereafter put forth by the magistrates. After 
that time such Edicts as were issued were special, con- 
taining declarations of the imperial will, usually ad- 
dressed to particular circumstances. They were no 
longer Edicts in the old sense, but mere imperial 
constitutions. 

It need hardly be said that under the Empire the 
action of the Praetor, like that of all other magistrates, 
had been liable to be directed or supervised by the 
Sovereign or his legal advisers. An interesting illustra- 



704 ROMAN AND ENGLISH LEGISLATION 

tion of that supervision is worth mentioning, because 
it also brings into relief the fact that other magistrates, 
as well as the Praetor and Aediles, enjoyed the power of 
creating law by their action, which may be called either 
administrative or judicial, seeing that it united the two 
characters. Before the time of Augustus there had been 
no such thing among the Romans as the giving of an 
inheritance, or a legacy, by means of a Trust, i.e. by 
imposing on the honour and good faith of the person 
to whom property was left a legal obligation to hand 
it, or a part of it, over to some one else as the real bene- 
ficiary. The practice of asking such a person to carry 
out the testator's wish had existed, but he could dis- 
regard the wish if he pleased. Augustus, however, on 
two occasions directed the Consuls (not the Praetor) 
to enforce such a request by their authority, thereby 
turning the moral into a legal obligation ; and at the 
same time recognized an informal letter or writing (codi- 
cilli) as sufficient, where confirmed by a will, to impose 
a binding obligation on the heir. We are told that, in 
the latter case, having himself on one occasion performed 
what a testator had asked him, by way of trust, to do, 
he summoned a meeting of eminent jurists to advise 
him, and accepted the advice of Trebatius that the obli- 
gation should be held valid. These instances became 
the foundation of the extremely important changes 
which made the validity of Trusts, and that of codicilli, 
thenceforward a well-established legal doctrine 1 . As 
the origin of Roman trust inheritances is due to the 
action of the magistrates, so English trusts owe their 
legal force to the Chancellor ; and through the operation 
of the practice of creating them, coupled with the Sta- 
tute of Uses (27 Henry VIII, c. 10), there grew up the 
modern system of conveyancing. 

1 ' Primus divus Augustus semel iterumque gratia personarum motus, vel quia 
per ipsius salutem rogatus quis diceretur aut ob insignem quorundam perfidiam, 
iussit consulibus auctoritatem suam interponere, quod quia iustum videbatur et 
populare erat, paulatim conversum est in adsiduam iurisdictionem ' (Inst. ii. 23. 1). 
See also Inst. ii. 25. 



ROMAN AND ENGLISH LEGISLATION 70S 

The merits of our English Case Law system are very 
great. It is an abiding honour to our lawyers and judges 
to have worked it out with a completeness and success 
unknown to any other country. They have accumu- 
lated in the Reports an unequalled treasure of instances, 
conjunctions of circumstances raising points of law far 
more numerous than the most active intellects could 
have imagined. These points have been argued with 
the keenness which personal interest supplies, and de- 
cided under that sense of responsibility which the Judge 
feels when he knows not only that his judgement is to 
determine the pecuniary claims or social position of 
suitors, but also that it is to constitute a rule which will 
be canvassed by the bench and the bar, and find its place 
in volumes that will be studied long after he has quitted 
this mortal scene. There is therefore a practicality 
about English Case Law, a firm grasp of facts and re- 
ality, as well as a richness and variety, which cannot be 
looked for in legal treatises composed even by the ablest 
and most conscientious private persons, who, writing in 
their studies, have not been enlightened by forensic 
discussion nor felt themselves surrounded by the halo 
of official dignity. If the treatises of the great Roman 
jurists do to a large extent possess these same merits, 
it is because they too were, in a measure, public officers, 
and because much of the law they contain arose out of 
concrete cases 1 . 

The characteristic defects of Case Law which must 
be set against these merits are two. There is, first of 
all, its frequent uncertainty. As has been remarked al- 
ready, one must always assume a certain percentage of 
ill-decided cases which it is hard to get rid of. And it 
may often happen that a particular point, which spe- 
cially needs to be determined in the interests of legal 
science, remains for years, or even centuries, unsettled, 

- Not that all the cases we find in the Digest are concrete cases, for a good many 
seem to have been imagined for the sake of illustrating- the applications of a prin- 
ciple. Cf. the illustrations in Macaulay's Indian Penal Code. 

45 



706 ROMAN AND ENGLISH LEGISLATION 

because it is never brought before the Courts in a neat 
form which raises just the issue that wants settling. 
Sometimes it hardly matters which way the decision 
goes : the important thing is to have a decision, yet 
there is no means provided of getting one, unless by 
invoking the legislature, which is usually too much oc- 
cupied with political controversies or administrative 
problems to care for settling such a point. And sec- 
ondly there is the utterly unsystematic character from 
which Case Law necessarily suffers, and which it neces- 
sarily imparts to the whole law of the country. This 
defect is too familiar from everyday experience to need 
any illustration. It is the capital defect, one might say 
almost the only defect, of the law of England ; and peo- 
ple have so long talked in vain about remedying it by 
means of a Code, that they have at last grown tired of 
the subject, and seem to be settling down into despair. 
I refer to it for the sake of pointing out how the institu- 
tion of the Roman Praetor met a similar danger. The 
Romans had, to be sure, no great turn for scientific 
arrangement — their efforts at codification and the struc- 
ture of their legal treatises show that — but the Praetor's 
Edict had the immense advantage of presenting all the 
gist and pith of the newer law in a compact form, clearly 
and concisely set forth. The Edict thus became a centre 
round which the jurists could work, a point of departure 
for all further legislation, a main line of road running 
through the network of lanes, courts, and alleys that had 
been built up by a multitude of statutes and treatises. 
It was capable of being constantly amended and ex- 
tended so as to take in all changes in the law, while 
yet retaining its own character ; and it gave a unity, a 
cohesion, a philosophical self-consistency to the Roman 
law which it must otherwise have wanted even more 
than does our own. A German writer has somewhere 
remarked, in commenting on the crude and fragmentary 
character of the Roman Criminal Law, with whose de- 
velopment the Praetor had comparatively little to do, 



ROMAN AND ENGLISH LEGISLATION 707 

that the faults of that branch of legal science show how 
absurd it is to ascribe the merits of Roman jurisprudence 
to any special gift for legislation bestowed by Heaven 
on the Roman people. The excellence of their private 
civil law is (he observes) due simply to the fact that 
they had the good sense, or perhaps the good luck, to 
have provided in the Praetorship an office specially 
charged with the duty of constantly amending the law 
so as to bring it in accord with the growing civilization 
and enlarging ideas of the people. There is much truth 
in this. The Romans, however, did not invent their 
Praetor with any such conscious purpose. Their merit 
was that, when they saw him occupied in developing the 
law, they gave him free scope, and supported him in 
his beneficent work. He is a unique figure among the 
law-making organs of the nations. Since he is the choice 
of the people, he is able to do things which the minister 
of an absolute monarch might prudently shrink from 
doing; and the people permit him to retain his func- 
tions, even in days when the habit of directly legislating 
had so much increased that it might have been sup- 
posed that legislation would restrict or supersede his 
action. No modern republic would vest such power in 
an official, nor would any modern monarch be permitted 
by public opinion so to vest it. 

Nevertheless, though he belongs to a world which 
cannot return, the Praetor's career may suggest to us 
that every civilized nation ought, in some way or other, 
to provide an organ representing its legal intelligence 
which shall mould and supervise the gradual and sym- 
metrical development of its law. It may be suggested 
that all modern States do provide such an organ in 
their legislatures, whose business is largely, in some 
instances almost entirely, that of making law, and which 
presumably contain the most capable men whom the 
nation possesses. When we have considered the condi- 
tions under which legislatures work, as I propose now 
to do, we shall be better able to judge how far they 



708 ROMAN AND ENGLISH LEGISLATION 

fulfil the function which the Praetor discharged at 
Rome. 

VI. Direct Legislation at Rome. 
A. The Popular Assembly. 

We have now compared the organs and the methods 
of legislation which existed in the Roman Republic and 
Empire with those of England, so far as relates to the 
action of the jurists, magistrates, and judges. Taking 
first the Roman jurisconsults and authors of legal trea- 
tises, it was suggested that their English analogues were 
rather to be found not so much in text-writers as in the 
judges, the result of whose labours is preserved in the 
vast storehouse of the Reports ; while in considering 
the action of the Roman Magistrates, especially of the 
Praetor, in the creation of law, stress was laid on the 
advantages which the peculiar position of this great head 
of the whole judicial system presented for the gradual 
and harmonious development of legal rules, an advan- 
tage which the disconnexion of the Chancellor from the 
Common Law Courts did not permit in England. This 
led to an examination of the English method of develop- 
ing and amending of the law by the decisions of the 
Courts, a method which, if it loses something in point 
of symmetry, has the advantage of providing an un- 
rivalled abundance of materials for the determination 
of every question that can arise, and of subjecting 
each disputable point to the test of close and acute 
scrutiny. 

We may now go on to examine another mode of 
creating law, that namely which proceeds immediately 
from the supreme power in the State, and which may, 
as contrasted with the indirect creation of law by jurists, 
or magistrates, be called Direct Legislation. 

The organ of such direct legislation is the supreme 
authority in the State, whether such authority be a Per- 
son or a Body, whether such body be the council of an 



ROMAN AND ENGLISH LEGISLATION 709 

oligarchy or a popular assembly, and whether such popu- 
lar assembly be primary or representative. 

The method whereby Direct Legislation is enacted 
is the public proclamation (usually, and now invariably, 
but of course not necessarily) in writing by the Su- 
preme Authority, of its will as intended to bind the citi- 
zens and guide their action. And the result is what we 
call Statute Law as opposed to Common Law. The 
distinction is a familiar one to both nations. The later 
Romans contrast lus and Lex x : we contrast Common 
Law and Statute. 

Let us first inquire what were, at different periods in 
the long annals of the Roman State, its various organs 
of direct legislation, and how each of them worked. It 
is of course only in outline that so large a subject can be 
treated. 

The Roman State lasted 2,206 years — from the un- 
authenticated ' founding of the city ' (for which I as- 
sume the traditional date of B.C. 753) down to the well 
authenticated capture of Constantinople by the Turks 
in a.d. 1453. Some would carry it down to 1806 and 
thus give it a life of 2,559 years, but the feudal Romano- 
Germanic Empire is such a totally different thing in 
substance from the Empire at Rome or at Constanti- 
nople, that although its sovereigns often claimed to 
legislate after the manner of Constantine and Justinian, 
nothing would be gained by bringing it and them within 
the scope of our inquiry. Now during this long period 
of two and twenty centuries, from Romulus to Constan- 
tine the Sixteenth, three such organs were successively 
developed. The first was the popular assembly of the 
citizens ; the second, the administrative council of mag- 
nates and ex-officials ; the third, the autocratic monarch. 
The first co-existed for a certain time with the second, 
the second with the third. The rights of the first and 

1 By the time of Justinian the distinction had come to be between lus as the old 
Law, including republican statutes, Senatus consulta, the Edicts of magistrates 
and the writings of the jurists, and the new Law, which consisted of imperial or- 
dinances, and was called sometimes lus Novum, sometimes Leges. 



710 ROMAN AND ENGLISH LEGISLATION 

the second seem to have never been formally extin- 
guished, even when the third had become in practice the 
sole source of law. Still we may, with substantial accu- 
racy, limit the action of the first to the republican period, 
that of the second (so far as properly legislative) to the 
earlier two centuries of the imperial monarchy, while in 
latef ages the third alone need be regarded. 

As I am not drawing a historical sketch, but merely 
attempting to point out how each organ acted in pro- 
ducing law, I shall not stop to discuss any constitutional 
questions as to the rights or powers at various times of 
these organs respectively, but shall assume each to have 
been in its own day duly recognized as competent to 
legislate. That is the view presented to us by Gaius 
(writing in the second century a.d.) and in the Digest and 
Institutes of Justinian enacted in the sixth century a.d. 
The Emperor says, ' The written law consists of sta- 
tutes, resolutions of the plebs, decrees of the Senate, the 
ordinances of emperors, the edicts of magistrates, the 
answers of jurisconsults 1 .' We have already considered 
the two latter, and have now the four former kinds of 
legislation to examine, all of which may be called, in a 
wide sense of the term, Statutes, i.e. declarations of the 
will of the State formally promulgated as law. 

The legislative power of the Roman people was ex- 
ercised, during the Republic, through three assemblies, 
those of the curies (this soon lost all practical import- 
ance), the centuries, and the tribes. Passing by the in- 
teresting and difficult questions as to the composition 
of these bodies, their respective functions, and the time 
when each may be said to have acquired or lost its 
authority, we may remark several features which they 
had in common, and which impressed a peculiar cha- 
racter on the laws that emanated from them. The differ- 
ences between them do not affect the points to which I 

1 ' Scriptum ius est lex, plebiscita, senatus consulta, principum placita, magi- 
stratuum edicta, responsa prudentum. Lex est quod populus Romanus senatorio 
magistratu interrogante, veluti consule, constituebat : plebiscitum est quod plebs 
plebeio magistratu interrogante, veluti tribuno, constituebat ' (.Inst, i, z. 3, 4). 



ROMAN AND ENGLISH LEGISLATION 711 

am going to call attention. All these comitia (literally, 
meetings) are Primary assemblies, that is to say, they 
are not representative bodies, but consist of the whole 
body of citizens, just like a Homeric ayopd, an Athenian 
or Syracusan iKKXrjaia, a Frankish mallum, an Old Eng- 
lish Gemot, an English seventeenth-century Vestry, 
a New England Town Meeting, an English Parish 
Meeting under the Local Government Act of 1894, an 
Icelandic Thing, a Basuto Pitso. The Roman assem- 
blies are, therefore, large bodies consisting of thou- 
sands, often many thousands, of persons, and fluctu- 
ating bodies, in which not always the same persons will 
be present, and in which those who live near the place 
of meeting will tend to preponderate. Further, they 
are — and this is a remarkable feature of the Roman 
system — bodies composed of minor bodies, and deter- 
mining their decision by a system of double voting. 
Each individual votes in the group to which he belongs, 
curia, centuria, or tribus, as the case may be ; and it is by 
the majority of curies, centuries, or tribes that the de- 
cision of the assembly as a whole is given, the collective 
voice of each of these groups being reckoned as one 
vote, and a small group having as much weight as a 
large one. Thus there may be a majority of group votes 
for a proposition while the majority of votes of indi- 
viduals is against it. This mode of voting, unfamiliar to 
modern political constitutions, survives in the Rectorial 
elections of two (Glasgow and Aberdeen) of the four 
Scottish Universities, where the students vote by ' na- 
tions ' ; and it has sometimes happened that a person is 
on this method chosen to be Lord Rector against whom 
a majority of the votes given by the individual electors 
has been recorded 1 . So under the Constitution of the 
United States, when no candidate for President has re- 
ceived a majority of the votes given, the House of Repre- 
sentatives chooses one of the five candidates who has 
received most votes, and in doing so the House votes 

1 See 52 & 53 Vict, c 55, § 14, subs. 4. 



712 ROMAN AND ENGLISH LEGISLATION 

by States, i.e. the majority of the Representatives from 
each State determine the vote of that State, and the 
majority of States (not of individual Representatives) 
prevails. Thirdly, these assemblies can be convoked 
and presided over only by a Magistrate, and their action 
may be stopped by another Magistrate. Fourthly, no 
discussion takes place in them. They meet only to vote 
on propositions submitted by the presiding Magistrate, 
who alone speaks, and who speaks only to put the ques- 
tion. Fifthly, they vote once only, and that vote is 
final and supreme, requiring no assent of or confirma- 
tion by any other body, but operating directly to create 
a rule binding all members or subjects of the State. 

Such a machinery seems almost as if calculated either 
to check legislation by throwing obstacles in its way, 
or else to make legislation hasty and imprudent. The 
passing of a long measure or a complex measure might 
be thought scarcely possible under it ; while at the same 
time it secures no opportunities for criticism and re- 
vision, and for the reconsideration at a future stage of 
decisions too hastily taken when the measure was first 
submitted. Thus there would appear to be a double 
danger involved in such a system, the danger of not 
moving at all, and the danger, when the people do move, 
of going too fast and too far. It must be remembered, 
however, that not very much direct legislation was 
needed. The improvement of ordinary private law was 
for the most part left to the Praetor and the jurists, 
while one great branch of modern legislation lay almost 
untouched during the Roman Republic, that of the regu- 
lation of powers and functions of administrative depart- 
ments. There was comparatively little general admini- 
strative law in our modern sense in Italy, because in 
Rome the magistrates and Senate had a pretty wide dis- 
cretion, and through the rest of Italy the local communi- 
ties managed their own affairs. So too in the provinces 
administration was left either to the local municipalities 
or to the Roman governors, proconsuls, or propraetors. 



ROMAN AND ENGLISH LEGISLATION 713 

Even if the method of legislating which these assem- 
blies followed be deemed ill fitted to secure that the 
merits of any change in the substance of the law should 
be carefully weighed, it need not have been equally de- 
ficient in making it excellent in point of form, i.e. clear, 
consistent, symmetrical. In this respect the absence of 
means for discussion and amendment may have worked 
for good. Statutes enacted in the form in which they 
have been originally proposed are more likely to be 
plain and simple than those which have been cut about, 
pared down, and added to by the action of some revising 
Committee or of a Second Chamber, probably dissimilar 
in opinion from the First Chamber, possibly disposed 
to differ for the sake of differing. The volume of direct 
legislation may, under a system like that of Rome, be 
comparatively small. But the fewer changes in the law 
are made by statute so much the better for the harmoni- 
ous development and inner consistency of the whole body 
of law, which suffers far less often from permitting the 
survival of an occasional anomaly or absurdity than 
from frequent tinkering, that is to say, from the intro- 
duction of exceptions to general rules, or the multiply- 
ing of provisions for special cases. So far, therefore, as 
quantity is concerned, the small amount of legislative 
work which the Roman comitia turned out was a matter 
for satisfaction, not for regret. 

As respects the quality of that work, the character of 
the Assembly produced some remarkable consequences. 
That it might be understood and approved by the ordi- 
nary citizens, the bill proposed must be comparatively 
short, terse, clear. In many cases it would have been 
previously discussed at public meetings, which the magi- 
strate could summon ; but those who would attend the 
meetings might be but a small proportion of those 
called upon to vote in the comitia. As it could not be 
amended by the Assembly, and would reflect credit or 
discredit on the name of the proposing Magistrate who 
was responsible for it, it must be prepared with scrupn- 



714 ROMAN AND ENGLISH LEGISLATION 

lous care. As it would become operative immediately 
on its being approved by the single vote of the Assembly, 
with no opportunity of correcting it at any later stage 
or in any other legislative body, an error would be seri- 
ous to the community, and specially damaging to the 
proposer. Moreover, as it could not be amended in 
the Assembly, it escaped all risk of having its drafting 
spoiled and of losing what original merits of breadth, 
lucidity, logical arrangement, and conciseness of expres- 
sion it might possess. No one could move to add or 
to omit a clause. No large principle could be qualified 
by the insertion of limiting words. No savings for 
particular cases could be suggested, and possibly ac- 
cepted in order to buy off opposition. ' Yes ' or ' No ' 
to the whole bill — these were the only alternatives. And 
the simpler the bill, so much more probable the ' Yes ' ; 
whereas in assemblies with power to amend, a ' Yes ' 
has to be purchased by compromises and concessions, 
which, whatever effect they may have on the substance 
of a measure, destroy the elegance of its form. The 
statutes passed by the Roman people had, therefore, 
owing to these causes, three great merits. There were 
few of them. They were brief. They were clear. We 
possess fragments, in some cases pretty large fragments, 
of a good many; and in all the drafting is excellent. The 
sharp, stern, almost grim conciseness and precision of 
the Twelve Tables seem to have been always present 
to the mind of the Roman draftsman as the model he 
ought to follow. 

It is worth remarking that the earliest Roman con- 
ception of a Lex or Statute was different from that which 
we find in the imperial period, as well as from that which 
any modern jurist would naturally form. The word lex 
meant in early Latin simply a set form of words; and 
when applied to an enactment by the comitia, it de- 
scribed, not a special kind of legal rule, but merely the 
expression of the people's will in set terms. And the 
original conception of a statutory enactment was that of 



ROMAN AND ENGLISH LEGISLATION 715 

a contract made between the Citizens in the comitia and 
the Magistrate representing the Corporate State. Hence 
the definition of Lex which we find given by Papinian 
(Dig. i. 3. 1), ' the common covenant of the republic ' 
(communis reipublicac sponsio), probably descends from 
the old practice according to which the Consul or other 
presiding Magistrate asked (rogavit) the comitia whether 
such and such was their wish, submitting to them the 
form of words whereby they were to agree to bind 
themselves. Just as in the Roman stipulatio the ques- 
tioner asks the promiser whether he promises to do 
such and such a thing, to which the latter answers, 
' I promise ' (spondco) ; so the Consul asks the Quirites 
whether they wish and order that such and such a thing 
shall be done (Velitis, iubcatis, Quirites?), whereto the 
citizens answer, ' Be it as you ask ' (Uti rogas). Thus 
the first (or at any rate a very early) form in which the 
notion of a formally enacted, as distinct from that of a 
Customary, Law emerges in Rome is that of a Contract. 
The Romans were like the English in this, that they 
seldom did anything formally till it had for a great while 
been done practically. Long after the power of legisla- 
tion had passed in substance from the king of England 
to his subjects represented in his Great Council, the 
forms of the Constitution continued to suggest that the 
monarch was still the prime agent in legislation. To-day 
the so-called Royal Veto, which ought rather to be called 
the right of the Crown to take further time to consider 
the resolutions of the two Houses, subsists in theory un- 
impaired, though it has not been exercised since 1707. 
So when actual power passed from the comitia to the 
Imperator in the days after Julius Caesar and Augustus, 
the rights and functions of the Assembly were not for- 
mally extinguished. Magistrates continued to be elected 
by the comitia till the accession of Tiberius, and the right 
of legislation remained for a great while afterwards le- 
gally vested in them. Statutes appear to have been 
passed by them as late as the time of Nerva. The comitia 



716 ROMAN AND ENGLISH LEGISLATION 

themselves died out by obsolescence, without being ever 
formally abolished, and apparently they went on meet- 
ing occasionally in a purely formal way long after they 
had ceased to be a reality, just as the name Respublica 
Romana survived in documents and inscriptions when 
the old associations it evoked had been forgotten 1 . 
And the popular assemblies died out all the more quietly 
because they had never met of themselves, by simple 
operation of law. Like the English Parliament, but un- 
like the American Congress and the Chambers of some 
European countries, they needed to be convoked by the 
Executive 2 . 

VII. Direct Legislation at Rome. 
B. The Senate. 

When legislation by these assemblies ceased the turn 
of the Senate came. This body, a Council of Elders as 
old as Rome itself, perhaps in its original form corre- 
sponding to the Council which surrounded the Homeric 
king, seems to have claimed, even during the Republic, 
the right of general legislation, a right which the popular 
party denied, and which was probably not well founded 
in law, although its undoubted competence to issue ad- 
ministrative decrees for temporary purposes made the 
claim plausible, and raised many questions of delicacy 
and difficulty regarding the exact limits of its power. 
Moreover the Senate, whose proper function was to ad- 
vise the magistrates, came to have a sort of ill-defined 
.authority over them, and they often found it prudent to 
shelter themselves under that authority ; so sometimes 

1 I saw a few years ago, in the ruins of Salona in Dalmatia, a lately uncovered 
inscription, dating apparently from the sixth or seventh century a.d., in which the 
protection of God is asked for the ' respublica Romana.' It need hardly be said 
that the term has in strictness nothing to do with the form of government, no more 
than has our English term ' Commonwealth.' 

2 The Crown is now in England bound by statute to summon Parliament, but 
should the Crown omit to do so, Parliament could not legally meet of itself, save 
that upon the demise of the Crown it does forthwith come together to swear alle- 
giance to the new Sovereign. 



ROMAN AND ENGLISH LEGISLATION 717 

a resolution directing a magistrate to take such and such 
a course might be quoted as possessing legal validity, 
especially if the course was one which lay within the 
scope of his official discretion. The whole subject was 
full of uncertainty, and a controversy seems to have 
gone on among constitutional lawyers regarding the 
Senate's powers, similar to that which long raged in 
England over the so-called dispensing power of the 
Crown 1 . When the comitia ceased to be convoked, ex- 
cept occasionally as a matter of form to give effect to 
the monarch's will, it was natural that the legislative 
functions of the Senate should win full recognition, for 
they furnished exactly the method of legislation which 
the Emperors desired. As the Roman State remained 
a republican commonwealth in theory and in strict in- 
tendment of law long after it had passed under the sway 
of a monarch, and as it was the object of the monarch 
to keep up this theory, he found it easy and safe to act 
through the Senate, which (though absolutely obedient 
to him) still wore the air of an independent body, rather 
than in his own person, ample as was the magisterial 
authority wherewith he was clothed. Thus the Senate 
at the same moment acquired power and lost it. It be- 
came recognized as entitled to make law, but it found 
itself the mere instrument of the Emperor for that pur- 
pose. From the time of Tiberius down to that of Ha- 
drian, many laws were passed by the Senate ; and though 
its action became thenceforward less frequent and less 
important, its rights lasted as long as it lasted itself, 
that is to say, till it died out in the disorder of the seventh 
century. They are referred to by Justinian as if still 
existing, but we do not hear of any practical use made 
of them in his time. One of the latest measures ascribed 
to the Senate is, oddly enough, a decree for regulating 
the election of Popes, and preventing tumults thereat. 

1 This is illustrated by the words of Gaius, ' Senatus consultum legis vicem obtinet 
quamvis fuerit quaesitv.m ' (Gai. Inst. i. 4). Ulpian however says, ' Non ambigitur 
senatum ius face- c posse ' (Dig. i. 3. 9). It too exerted a sort of dispensing power : 
cf. Sallust, Cat. 29. 



718 ROMAN AND ENGLISH LEGISLATION 

The Senate was in most respects much better fitted 
for legislative work than the popular assemblies had 
been, indeed than most assemblies have been in any 
country. It was composed of men of mature age, versed 
in affairs, many of them having filled high office, others 
having served as judicial referees, if we may so render 
the term indices; all therefore, or nearly all, possessing 
some knowledge, and many a large knowledge, of law 
and of administration. It was large enough to comprise 
persons of very varied experience, while small enough 
(in normal times) to be business-like, and to avoid the 
danger of degenerating into a mob 1 . Like the comitia, 
it voted only once on a proposition, and that one vote 
was sufficient to pass a law. Again like the comitia, it 
could only deal with what the magistrate brought be- 
fore it, private members having no initiative. But, un- 
like the comitia, it could debate a proposition and make 
amendments thereto; that is to say, when a particular 
draft measure was submitted, it was able, being thereby 
seized of the matter, to reject the proposition as drafted, 
and to pass one containing different provisions. There 
does not seem to have been anything analogous to our 
English system of going into Committee, and afterwards 
making a report to the House ; but, as the decrees sub- 
mitted were short and simple compared to those which 
the British legislature deals with, the method of amend- 
ing the proposal submitted, or debating and passing an 
alternative proposal, was doubtless sufficient for the 
needs of the case. What was lacking to the Senate was 
not machinery, but force. It was a tool in the hands of 
the Emperor, and was used by him as a means of for- 
mally enacting and promulgating measures on which he 
had already decided. His influence soon came to be 

1 Though Augustus found over a thousand members in it, many of them un- 
worthy, and was obliged to purge it carefully down to a reasonable strength 
(Sueton. Octav. 35). Whether there were senators with no legal right to speak but 
only to vote — they voted, as in the English Parliament, by dividing into two bodies 
— is matter of controversy. There was no closure, so senators used to talk against 
time. 



ROMAN AND ENGLISH LEGISLATION 719 

so fully recognized that the later lawyers sometimes 
cite not the Senatus consultum itself, but the speech 
(oratio) in which the Emperor proposed it to the 
Senate, although in these cases the legal validity 
of the law seems to be attributed to the vote of the 
Senate. After Hadrian it would appear that legisla- 
tive decrees were always passed at the instance of the 
monarch. 

Under an indulgent Emperor, and in matters of ordi- 
nary private law, there might of course be no great 
reason why amendments should not be suggested or 
even opposition made, by an active senator, to bills pro- 
posed by the presiding magistrate, although the magi- 
strate himself was usually merely the mouthpiece of the 
monarch. But the habit of servility grew so fast, that 
even this remnant of independence seems to have soon 
become rare. Nothing was so dangerous as to give 
offence to a sovereign whose power was restrained only 
by his good nature. 

The checks which have been noted as existing in the 
case of the comitia on prolixity or obscurity in the terms 
of a statute, were absent in the case of the Senate. Yet 
the good habits formed in earlier centuries were not lost. 
The Senatus consulta which remain to us are favourably 
distinguished by their clearness and brevity. The ease 
with which they could be passed, or repealed when 
passed, does not appear to have led to their being drawn 
carelessly as regards either substance or form. It may 
however be remarked that having been originally not so 
much laws as resolutions of a body primarily ad- 
visory, intended to express its opinion, and to guide or 
strengthen the hands of an executive magistrate, they 
continued to be couched in language hardly so techni- 
cal as that of the old leges. They are less imperative in 
form, and often express quite as much in their preamble, 
which contains the motives that have suggested the 
decree, as through the more strictly enacting part. Oc- 
casionally they approach dangerously near, as preambles 



720 ROMAN AND ENGLISH LEGISLATION 

are apt to do, to becoming rhetorical declarations of 
policy. 

The Senatus consulta actually preserved, or known to 
us by name, are less numerous than might have been 
expected. The same may be said of the leges, or rather 
of such among them as were of general and permanent 
effect, not mere acts of an executive nature. If we could 
suppose that the legislative activity of the Roman State 
had manifested itself only through leges and Senatus 
consulta, it would be hard to understand how that State, 
developing as it did, could have got on and attained its 
amazing development in wealth and population with so 
few legislative changes. The explanation, of course, is 
that the Praetor and the jurists were doing the main 
part of the work, just as during the eighteenth century 
in England the judges and text-writers were steadily 
developing our private law, which was but little altered 
by statute through the whole of that century. During 
the later Republic and the earlier Empire direct legis- 
lation was (speaking generally) resorted to either to 
abolish some deeply rooted rule or else to establish some 
new departure, which a magistrate hesitated to under- 
take on his own responsibility. 



VIII. Direct Legislation at Rome. 
C. The Emperor. 

The third and last form of direct Roman legislation is 
that of imperial ordinance. In one aspect it is the most 
important form, because nearly all the law of statutory 
origin which has come down to us was enacted by the 
Emperors, the number of leges and Senatus consulta 
being slight in comparison. The Emperors, moreover, 
spoke the last word. It was their legislation which 
gave to the Roman law the shape in which it descended 
to the modern world both in the East and in the West. 

The Emperor's legislative authority grew up slowly 



ROMAN AND ENGLISH LEGISLATION 721 

and almost imperceptibly out of the rights which he 
enjoyed as holder of several great magistracies, or in- 
vested with the powers which belonged to them. Al- 
though, in later times, the imperial function of legisla- 
tion was ascribed to a formal transfer made to him by 
the people of their own authority 1 , it is important to 
remember that its true parent is to be sought, not in 
leges, nor even in Scnatus consulta, not in any representa- 
tion by him, as the heir of the Assembly, of the ancient 
right of popular sovereignty, but rather in the Edicts 
of the magistrates, whether their formal enunciations 
on entering office of the rules by which they proposed 
to act, or their less public instructions to their sub- 
ordinate officials. 

Even the action of the jurists, and the custom of issu- 
ing answers on points of law (responsa), contributed 
something to the conception of the Emperor as a source 
of law, for he was, as a magistrate, an authoritative ex- 
ponent of the contents of the customary law, and of the 
interpretation of the statute law ; and if an answer given 
under his commission by an authorized jurist was bind- 
ing on a index, how much more weight was due to a de- 
claration proceeding from himself, the fountain-head of 
authority? That the imperial ordinances have not pre- 
served the outward forms and character of the republican 
statutes is a consequence of these facts and of the con- 
ception I have described. They are not expressed in the 
same strict and highly technical language as the old sta- 
tutes were. As regards some of them, and especially 
some of those which belong to the first two centuries of 
the Empire, it is hard to say whether they were originally 
intended to have a general application, for they may 
have been mere instructions or declarations of opinion, 
given for the special occasion and purpose only. In 
fact the Emperors found it necessary to protest against 
the tendency to attach legal weight to all their words. 
Trajan, for instance, who seems to have left the cha- 

1 Cf. Just. Inst. i. 2. 6 : cf. Dig. i. 4. 1. 

sdfi 



722 ROMAN AND ENGLISH LEGISLATION 

racter of being more indulgent than most of his prede- 
cessors or successors — witness the story of the widow 
through whom and the prayers of Pope Gregory he ob- 
tained salvation 1 — declares that when he makes an an- 
swer to a particular request he by no means desires to 
be taken as establishing a precedent. He felt, no doubt, 
that in many cases the precedent would be of question- 
able value, according to the proverb that hard cases 
make bad law. However, the tendency was too strong 
to be resisted. All declarations emanating from the 
supreme authority in the State were taken to be binding 
on its subjects : and we may imagine how often a wily 
advocate, or an adulatory judge, would, with loud pro- 
fessions of loyalty, insist on regarding as law what the 
Emperor had intended to be merely a good-natured 
compliance with the petition of some unlucky or impor- 
tunate suppliant. 

It is not necessary for our immediate purpose to de- 
scribe the various forms which the legislation of the Em- 
perors took. They are classed as Rescripts, answers to 
questions or petitions, Edicts or general proclamations, 
Mandates or instructions to officials, Decrees {deer eta), 
decisions of the Emperor as being at first practically, 
and at last legally also, a Supreme Court of Appeal 2 . 
In later times the general name of Constitutions (consti- 
tutio est quod imperator constituii), was given to them ; and 
in what has to be said further, minor differences between 
the above mentioned forms may be ignored, and the 
various kinds of constitutions may be treated together 
as being all of them enunciations by the sovereign power 
of those general rules of law which it desired to have 
observed by its subjects — as being in fact on the same 
footing as an imperial Ukase in Russia, or an Act of 
Parliament in England. 

Such legislation by an irresponsible autocrat as that 

1 Dante, Pur gat. canto x. 

2 Sometimes the speeches delivered to the Senate are included, but in these cases 
the law seems (as already observed) to have been deemed rather senatorial than 
imperial. 



ROMAN AND ENGLISH LEGISLATION 723 

with which the Roman State ended, stands at the oppo- 
site pole from that legislation by a primary assembly with 
which the Roman State began. The latter organ was a 
stiff, heavy, cumbrous machine, which it was hard to set 
in motion, and which could work only under certain pre- 
scribed forms. The former was not only immensely 
powerful, but so readily applicable, playing so swiftly 
and so smoothly, that it was likely to be used too often 
and to act too fast. The Roman Emperor occupied, it 
must be remembered, a position different from that of 
any absolute sovereign in modern times. The Czars in 
Russia now, the Prussian and French kings in the last 
century, are, or were, the heads of their respective na- 
tions, and therefore not only to some extent likely to 
participate in national ideas and sentiments, but also 
largely amenable to national public opinion. However 
complete their legal sovereignty and practical control, 
the misuse of their legislative powers could not escape 
popular censure. A national king is naturally restrained 
by the fear of displeasing his fellow countrymen. But 
the monarch of the Roman world, a world where the 
old Roman nationality had, before it expired, so far 
crushed the other subject nationalities that none of them 
could offer any resistance to the levelling pressure of 
the imperial authority, found himself unguided and un- 
controlled by any influence, except the dread of a palace 
conspiracy or a military rising. Public opinion pos- 
sessed then no voice, such as it afterwards found in the 
church, or finds now in the press. The various peoples 
who, from the second or third century a.d. onwards, 
called themselves Romans, had not been sufficiently 
fused together to have a common public opinion. It 
was not till the sixth or seventh or eighth century that 
the greatly narrowed Eastern Empire began to have a 
social and moral coherence, and developed into what 
might be called a National power. 

This unique position of the Roman Emperor made 
legislation a great deal easier for him than for any 



724 ROMAN AND ENGLISH LEGISLATION 

modern monarch, easier than for the ruler of China, be- 
cause there was no vast body of ancient customs he 
might fear to break through, easier than for a Turkish 
Sultan, because there was no quasi-ecclesiastical au- 
thority like the Sheik-ul-Islam or the whole body of 
Muslim doctors he might fear to offend. And the fact 
already noted that the powers of the popular Assembly 
had not been formally vested in him, worked in the same 
direction. Had there been any legal transference of 
legislative functions, some of the old forms and methods 
would have passed over with the transfer. There would 
have been at any rate a pretty sharp line drawn between 
the officially promulgated ordinances of the Emperor 
and the merely occasional and informal expressions of 
his will. But (as has already been noted) the Emperor 
did not legislate as the assignee of the popular power 
of legislation. His function of making laws sprang from 
his authority as a magistrate, and the undefined charac- 
ter of that authority remained with him, and helped to 
make his exercise of it infinitely various in shape and 
expression. Accordingly in later days no line was for- 
mally and technically drawn between the more and the 
less solemn declarations of his sovereign will. He was 
not bound by the laws. He made law as a part of his 
daily administrative and juridical action. He legislated, 
one might almost say, as he talked and wrote. He ex- 
haled law. Whenever an idea occurred to him, or to 
the minister authorized to speak in his name, he had 
only to sign, in the purple ink reserved (in those later 
days) for the monarch, a few lines, and therewith a law 
sprang at once into being. 

This was the theory, and this was also to some extent 
the practice. Still the exigencies of a position which 
threw on one man a prodigious burden of toil and re- 
sponsibility, compelled the Emperors to make regular 
provision for the discharge of their legislative and ju- 
dicial work. A Council soon grew up, consisting at 
first chiefly of Senators, afterwards largely of jurists, 



ROMAN AND ENGLISh LEGISLATION 725 

whose members acted as assessors to the Emperor when 
he heard civil or criminal cases, and who also advised 
him on projects of legal change. At first it was a fluctu- 
ating body, composed of persons whom the monarch 
summoned for each particular occasion, though doubt- 
less some of the ablest and most trusted men would be 
invariably summoned. But under Trajan and Hadrian 
it became a regularly organized chamber of formally 
nominated and salaried officials, in which, besides ju- 
rists, there sat some Senators and Knights, and a few 
of the chief court officers, together with the Praetorian 
Prefect, who seems after the second century to have 
held the leading place. As it was numerous, we may 
suppose that particular members were summoned for 
particular kinds of business, or that it often worked by 
committees. In all these points it furnishes an interest- 
ing parallel to the English Privy Council. And it was 
itself, under the name of Consistorium, which it took 
in the time of Diocletian, the model on which the papal 
Consistory was ultimately built up by the bishop of the 
imperial city. Some of its chief members were the im- 
mediate ministers of the sovereign, journeying with 
him, as Papinian accompanied Septimius Severus to 
York, or directing legal and judicial business from 
Rome, while he made progresses through the provinces, 
or warred against the barbarians on the frontier. Among 
the duties of the Emperor's legal councillors, that of 
prompting, directing, and shaping legislation must have 
been an important one. Probably there was a regular 
staff for the purpose, a sort of Ministry of Justice, di- 
rected by the Praetorian Prefect, and in later times by 
the Quaestor, with a body of draftsmen and clerks. 
How much the Emperor himself contributed, or how 
far he examined for himself what was submitted to him, 
would depend on his own special knowledge and in- 
dustry. Rude soldiers like Maximin, debauchees like 
Commodus, would leave everything to their advisers, 
and if these had been wisely selected by a preceding Em- 



726 ROMAN AND ENGLISH LEGISLATION 

peror, things might go on almost as well as under a 
capable administrator like Hadrian, or a conscientious 
one like Severus Alexander 1 . The number of consti- 
tutions enacted was enormous, judging not only from 
what the Empire must have needed, but from the laws, 
or fragments of laws, which remain to us in the Codes 
of Theodosius II and Justinian; and as the legislative 
action, both of the Senate and of the Magistrates (other 
than the Emperor), had almost wholly ceased after Ha- 
drian's time, while the local rules and customs of the 
provinces tended to be more and more superseded by 
the law of the ruling city, legislation may, at least for a 
considerable period, have rather increased than dimi- 
nished in volume. 

The good and bad points of a system which commits 
the making of laws to an absolute sovereign are easily 
summed up. Autocratic power is the most swift and 
efficient of all instruments for effecting reforms. Used 
with skill, tact, and moderation, it can confer incalculable 
benefits on a country. To be able at your pleasure to 
abolish obsolete institutions, to curtail the offensive 
privileges of a class, to override vested interests, to re- 
move needless anomalies and antiquated forms of pro- 
cedure, to simplify the law by condensing a confused 
mass of statutory provisions, or expressing the result 
of a long series of cases in a single enactment, and to do 
all this without the trouble of justifying your enlightened 
purposes to the dull and the ignorant, or of mitigating 
hostility by concessions and compromises which ruin 
the symmetry and reduce the effectiveness of your 
scheme — this is indeed a delightful prospect for the law 
reformer. The power of trying experiments is seduc- 
tive to the philanthropist or the philosopher, for there 
are many problems which ought to be attacked by ex- 
perimental methods, since nothing but an experiment 

1 Of whom we are told that he never sanctioned any Constitution without the 
advice of at least twenty jurisconsults. After Hadrian the Consiliarius Augusti 
had a position of recognized dignity. 



ROMAN AND ENGLISH LEGISLATION 727 

can test the merit of a promising plan. Yet experiments 
are just the things which in popularly governed coun- 
tries it is rarely possible to try, because the bulk of man- 
kind, being unscientific, will seldom permit a thing to 
be tried till it has been proved to be not merely worth 
trying but absolutely necessary, while when it has been 
tried, and has not worked well, it is almost as hard to 
persuade them either to vary it or to drop it altogether. 
To tell the multitude that the scheme you propose may 
fail, though you think it worth trying, is to discredit 
it in their eyes. To admit that it has failed is to destroy 
your own credit for the future. 

So again, if it is a question of improving the form and 
expression of the law, an absolute monarch evidently 
enjoys the finest possible opportunities of creating a 
perfect system. He can command all the highest legal 
ability of the State. He can bestow upon his commis- 
sion of legislators or codifiers the widest discretion. 
When they have finished their work he can subject it 
to any criticism he pleases before enacting it as law. 
When he enacts it, he can abolish all pre-existing law by 
a stroke of the pen. Even afterwards he can readily 
correct any faults that may have been discovered, can 
suppress old editions, can provide means by which the 
law shall be regularly from time to time amended, so 
that all new statutes and all interpreting decisions shall 
be incorporated with it or appended as supplements to 
it. Few are the philanthropic enthusiasts, few are the 
theoretical codifiers, who have not sighed for an Auto- 
crat to carry out their large designs. 

According to that law of compensation which obtains 
in all human affairs these advantages are beset by corre- 
sponding dangers. Ease begets confidence, confidence 
degenerates into laxity and recklessness. As the laws 
of metre and rhyme help the versifier by forcing him 
to study and polish his diction, so he who is not now 
and then stopped by obstacles is apt to advance too 
quickly, and may not consider whither he is going. If 



728 ROMAN AND ENGLISH LEGISLATION 

an error can be readily recalled it is lightly ventured, 
and the hasty legislator discovers too late that it is not 
the same thing to recall an error as never to have com- 
mitted it. In the field of legislation the danger of doing 
too much is a serious danger, not only because the 
chances of error are manifold 1 , but because the law 
ought to undergo as few bold and sudden changes as 
possible. The natural process whereby the hew circum- 
stances, new conditions, new commercial and social re- 
lations that are always springing up become recognized 
in custom and dealt with by juridical science before 
direct legislation impresses a definite form uppn the 
rules that are to fix them — this process is the best, and 
indeed the only safe way by which a nation can create 
a refined and harmonious legal system. Even the cer- 
tainty of the law is apt to suffer if legislation becomes 
too easy, for the impatient autocrat may well be tempted, 
when some defect has been discovered, to change it 
forthwith, and then to find that the change has been too 
sweeping, so that steps must be taken backward, with 
the result of rendering doubtful or invalid transactions 
which have occurred in the meantime. If these dangers 
are to be avoided, it must be by entrusting legislation to 
the hands of advisers not only learned and skilful but 
also of a conservative spirit. In war and politics bold- 
ness is quite as needful as caution, but in reforming the 
law of a country the risk of going too slow is less serious 
than that of going too fast. 

These observations are illustrated by the course of 
events at Rome. At first, while the magistrates were 
still hard at work in building up the law by their Edicts, 
and the jurists no less active in developing it on con- 
servative lines by their responsa and treatises, the Em- 
perors used their legislative power sparingly because 
they were guided by accomplished lawyers. Compara- 
tively few constitutions are cited from the days of Trajan 

1 To ftev yap dfiapTaceif iroAAax^S cori, to Se naropBovv jaovax«S, says Aristotle : 
' You can hit only in one way, but you may miss in many.' 



ROMAN AND ENGLISH LEGISLATION 729 

and Hadrian, and even from those of the Antonines. 
These constitutions are short, clear, precise, introduc- 
ing only those new rules or deciding only those ques- 
tions which it was necessary to establish or deal with. 
After the time of Diocletian 1 , when the powers of the 
old magistrates had withered away and the fountain of 
juristic genius had dried up, direct legislation became 
far more copious, and began to range more widely over 
all sorts of subjects. Serviceable it certainly was in 
the way of abolition, for there was much to be abolished. 
But it tended to become always more and more rash 
and heedless in its dealings with the pre-existing law. 
Apart from the harshness or bad economics which fre- 
quently marred its provisions, it was often injudicious 
in matters of pure legal science. If in some cases it 
cleared the ground of antiquated rules and forms, in 
others it merely shore away abruptly and inartistically 
the more conspicuously inconvenient applications of an 
old doctrine, while leaving the doctrine itself to create 
future difficulty. It acted too much with reference to 
the particular evil dealt with, too little with a view to 
the law as a whole. It was, in a word, too unmindful of 
that elegantia, that inner harmony and consistency with 
principle which had been always before the eyes of the 
elder jurists. Legal style and diction experienced a 
similar declension. From and after the days of Diocle- 
tian, the language of imperial ordinances grows more 
and more rhetorical, pompous, and turgid. The imperial 
utterances had never emulated the scrupulous exacti- 
tude and technicality of the republican leges. But they 
were, during the first two centuries of the Empire, simple 
and concise. Afterwards, while becoming more prolix 
they became also less exact. These faults are, to be sure, 
not mainly due to the more palpably despotic position 
of the Emperor, but rather to the steady deterioration 
of juridical and literary capacity which mark these later 

1 Many of Diocletian's rescripts are well expressed and show a mastery of the 
old legal principles. 



730 ROMAN AND ENGLISH LEGISLATION 

centuries. That the decline was less evident in the de- 
partment of law than in most other branches of intel- 
lectual life may be ascribed, partly to the nature of the 
subject, which does not invite florid treatment, partly to 
the absence of Greek rhetorical models, Greek being 
eminently the language of rhetoric, partly, perhaps, also 
to the influence of the two great law schools of Beyrut 
and Constantinople, and to the fact that the writings by 
which the lawyer's mind was formed were still the ad- 
mirable works of the luminaries of the early Empire. 
Still the fall is a great one. How much more repellent 
is the extreme of over-ripe laxity than the extreme of 
primitive stiffness may be felt by any one who will 
compare the weak and wordy ' New Constitutions ' 
(Novels) of Justinian with the crabbed strength of the 
Twelve Tables, abrogated by Justinian himself after a 
thousand years of reverence. There is, in fact, only one 
fault which the later imperial legislation may appear to 
have avoided when we compare it with that of modern 
England or America. It goes much less into detail. 
It does not seek to exhaust possible cases, and provide 
for every one of them. This merit, however, is due, not 
so much to skill on the part of the Roman draftsmen, 
as to the range of power allowed to Roman officials and 
judges, and to the faint recognition of the rights of the 
individual subject. The tedious minuteness of modern 
English and American statutes, if it grieves the scientific 
lawyer, is after all a laudable recognition and expression 
of that respect for personal liberty and jealousy of the 
action of the executive which have distinguished the 
English race on both sides of the Atlantic. Thus that 
which might appear to be an excellence of the later im- 
perial legislation in point of form is seen to be an evil in 
point of substance, for it is due, not to any superiority 
of legal skill, but to the existence of an autocracy which 
did not care to limit the discretion of its subordinate 
officers. 



ROMAN AND ENGLISH LEGISLATION 731 

IX. Direct Legislation in England: 

Parliament. 

It remains for us to consider the organ of direct 
legislation in England, and the work which that organ 
turns out. Here again I must turn away from the large 
field of historical inquiry. The history of English sta- 
tutes, their development out of petitions addressed to 
the sovereign in his Great Council, the mode in which 
they were drafted, debated, and passed, the rules of 
interpretation which have obtained regarding them, 
their influence at different epochs upon the growth of 
the Common Law, the development and value of the 
functions of non-official members of Parliament in pre- 
paring them and getting them passed, the decay of those 
functions which the last few years have seen — all these 
would supply interesting and instructive matter, not 
merely for an essay but for a treatise. But seeing how 
long we have had to wait for a philosophical history 
of the law of England in general, one need not be sur- 
prised that this particular department still waits for its 
historian 1 . 

In England there has been, through the long course 
of our history, only one organ of Direct Legislation, viz. 
the Great Council of the nation. It began as a Primary 
Assembly of all freemen. It passed, between the time 
of Athelstan and that of Henry III, through a phase in 
which it had, owing to the growth of the nation and to 
the practical limitation of its membership, almost ceased 
to be Primary in fact, though its theoretical character, 
as embracing the whole people, had not been abrogated. 
Since the time of Edward I it has consisted of two 
branches, one of which is Primary, the other Repre- 

1 The admirable History of English Law of Professors Pollock and Maitland 
stops soon after the point at which parliamentary legislation begins. Since the pas- 
sage in the text was written, the book of Sir C. P. Ilbert, entitled Legislative Me- 
thods and Forms, has been published. It is full of valuable information and acute 
remarks upon modern English legislation, and brings together a mass of historical 
facts never previously collected. 



732 MO MAN AND ENGLISH LEGISLATION 

sentative; and this present phase is evidently drawing 
to its end. 

Thus the history of Direct Legislation in England 
stands contrasted with the history of such legislation 
in Rome in two points : (i) that we in England have 
always had an organ which in intendment of law was 
the same from beginning to end, and admittedly su- 
preme ; and (2) that we have never had more than one 
organ at the same time, whereas at Rome the theoreti- 
cally complete and unrestricted legislative power of the 
popular assembly coexisted, for a time, with the legisla- 
tive power of the Senate, and the theoretically complete 
and unrestricted legislative power of the Senate co- 
existed for a certain period with the legislative power 
(stronger, but at first carefully disguised) of the Em- 
peror. It may seem absurd to speak of two organs of 
direct legislation as each complete and supreme : yet 
such would seem to have been the theory of the Roman 
law. We in England came near having a similar state 
of things in the days when the Crown claimed, and was 
sometimes permitted to exert, a power of legislating 
apart from Parliament and not in virtue of any permis- 
sion by Parliament. But this power was never for- 
mally recognized by the law. 

The Parliament of the United Kingdom and that eld- 
est and strongest of its numerous progeny, the Congress 
of the United States, seem at first sight well composed 
and admirably equipped for securing legislation which 
shall be excellent in point both of Substance and of 
Form. As to excellence of Substance, these assemblies 
ought to be able to make such laws as the people wish 
and need, for they are popular in character, giving full 
expression to the wishes of all classes, and enabling 
any person or section aggrieved by existing defects in 
the law to state his complaints and suggest a remedy 
for them. The British Parliament, moreover, consists 
of two Houses, one of which, while deficient in the 
strength that comes from popular election, is by its 



ROMAN AND ENGLISH LEGISLATION 733 

composition capable of looking at questions from a 
point of view unlike that of the Lower House. It con- 
tains many men of great ability and knowledge of affairs, 
so that it could well discharge (if so disposed) the func- 
tions of criticism and revision. So the American Con- 
gress has also the advantage of being composed of two 
branches, either of which can criticize and amend the 
bills passed by the other. 

As regards excellence of Form, which is that with 
which we are here specially concerned, several notable 
merits may be claimed for the British Parliament. The 
House of Lords, as has been just observed, contains 
among the fifty or sixty persons (out of nearly six hun- 
dred members) who habitually attend its sittings not 
a few possessing intellectual power and practical ex- 
perience, with (usually) some seven or eight distin- 
guished lawyers, the flower of the legal profession. 
Being a representative body, the House of Commons 
contains persons who are presumably above the average 
in knowledge of the world and its affairs, as well as in 
intellectual capacity. Among these there are to be found 
many men (though a smaller proportion than is found 
in the American Congress or in some colonial legisla- 
tures) who possess a technical acquaintance with the 
laws of the country, and ought to be specially well fitted 
to amend them, while at the same time any such ten- 
dency as professional men might have to indulge in mere 
technicalities is likely to be corrected by the presence of 
a majority of laymen. They deliberate in full publicity, 
and thereby can obtain from all quarters suggestions 
that may direct or help them. They are responsible to 
those who have sent them up, and who can closely 
watch their conduct. Ample opportunities are provided 
for the discussion of every measure, and for curing any 
defect which may lurk in any Bill brought forward either 
by the Ministers of the Crown, liable through their posi- 
tion to a fire of hostile criticism, or by a private mem- 
ber. Every Bill has to pass through seven stages in 



734 ROMAN AND ENGLISH LEGISLATION 

the House of Commons 1 , and six in the House of Lords, 
and at each of these stages it may be debated at indefi- 
nite length 2 . That must be, one would think, either a 
very trivial or a strangely hidden blemish which escapes 
the notice of keen, experienced, and often unfriendly 
critics on twelve successive occasions 3 . Could any ma- 
chinery be better adapted to secure that the laws passed 
shall be expressed in the most clear and precise terms, 
that each shall be well arranged and self-consistent, that 
every new statute shall be properly fitted into those that 
have gone before, and shall, in effecting any change, re- 
peal expressly the parts of previous statutes which it 
affects, so as to provide against possible uncertainty or 
discrepancy? 

Why is it then that we hear so many complaints about 
the condition of the laws of England as to the number 
of points which remain unsettled, as to the confusion 
in which some great departments of law lie, as to the 
undue length of our statutes, their obscurity, their in- 
consistencies, their omissions ? I do not inquire to what 
extent these complaints are well founded. It is enough 
to note that they proceed not merely from scientific 
jurists, who might be supposed to be enamoured of an 
impossible ideal, but from such practical men as com- 
pose our commercial classes, such technically compe- 
tent as well as practical men as the judges of the land. 

Somewhat similar complaints are made in the United 
States. The methods of legislation used there are gene- 
rally similar to those of Britain, both in the Federal 
Congress and in the forty-five State Legislatures, and 
every one of these bodies consists of two Houses, each 

1 Now (1900) reduced to six by the discontinuance of the habit of putting the 
question that Mr. Speaker do leave the chair when the House of Commons goes 
into Committee. 

2 Now, however, subject to the power of imposing the closure of debate, a power 
the growing frequency of whose exercise has greatly altered the character of the 
House. 

3 Now reduced to eleven. The number of stages for a Bill which passes through 
both Houses must be calculated by subtracting one from the number reached by 
adding the stages in each House, because a Bill coming from either House to the 
other obtains its first reading as a matter of course, without debate. 



ROMAN AND ENGLISH LEGISLATION 735 

jealous of the other. The chief difference is that the 
Americans consolidate their statutes at certain inter- 
vals, so that the statute law, both Federal and State, is 
brought within a smaller compass than that of the United 
Kingdom. Subject to this and to some minor dissimi- 
larities, the remarks which follow on the causes why 
British legislation is less perfect than might be expected 
from the elaborate machinery provided for producing it 
apply to the United States also 1 . 

The methods of British legislation, and the dangers 
incident to those methods, are exactly the opposite to 
those which we have noted in Rome. Both under the 
Republic, when statutes were passed at the instance of 
a magistrate with no possibility of amendment by the 
Assembly, and under the later Empire, when the mo- 
narch or his advisers could issue a law with as much 
ease and as little personal fear of consequences as a 
counsel can draw a will or the articles of a joint stock 
company, no provision was made for independent criti- 
cism, nor for discussion, nor for the interposition of 
delays. The excellence of the law depended on the per- 
son who prepared and proposed it, and on him alone 2 ; 
and the law could be issued to take effect as soon as 
the Assembly had given its one vote or the Emperor 
his one signature. The Senate could indeed debate and 
might amend the forms of decrees submitted to it, but 
as it was really a mere instrument in the Emperor's hand 
it exercised these powers very sparingly. 

With us in England the opportunities for debate, for 
resistance, and for amendment are so ample as to pre- 
vent many things from being done which ought to be 
done, and to impress an unscientific cumbrousness, pro- 
lixity, and inelegance upon most of the work we turn 
out. Too many persons are concerned, and few of them 

1 As to the actual methods and difficulties of Parliamentary legislation, see the 
penetrating and careful analysis contained in Sir C. P. Ilbert's Legislative Methods 
and Forms, chap. x. 

2 Although, as observed above, the Emperor might, if he liked, cause a draft 
Constitution to be debated in his Consistory. 



736 ROMAN AND ENGLISH LEGISLATION 

have any care or taste for technical excellence. The 
House of Commons is overloaded with work, some of 
it work which it had better not attempt, but which it 
does attempt in deference to the clamorous demands 
of particular sections of opinion. A reform in the sub- 
stance of the law excites little interest unless it has 
either some political (i.e. party) importance, or has a 
considerable pressure of public opinion behind it. A 
reform in the form and expression of the law, having 
neither of these forces to back it up, excites no interest 
at all. Accordingly it is neglected, for a Ministry is 
disposed to think first of pleasing its own supporters, 
then of winning popular favour in general, and accord- 
ingly gives the time at its disposal to measures deemed 
likely to secure for it political advantage. 

Private (i.e. unofficial) members of Parliament might 
supply what is lacking in the Ministry by bringing for- 
ward and passing modest and useful Bills, calculated 
either to remove minor defects in the substance of the 
law or to improve its form. But the Ministry now com- 
mands so large a part of the available time of the House 
of Commons, and the opportunities given to members 
for arresting the progress of other members' bills are 
so abundant, that hardly anything can be accomplished 
by an unofficial member. In the United States, where 
all members are unofficial, the despotism of the British 
Ministry, which after all is a responsible despotism, is 
replaced by the irresponsible despotism of the Com- 
mittees, which are as much disposed as is a British 
Ministry to be swayed by sectional pressure or by the 
prospect of political gain. 

The British House of Commons is too large for dis- 
cussing what may be called the technical or formal part 
of legislation. Its debates in Committee on points of 
substance are often excellent. But it cares little for 
harmony, propriety, and conciseness of language. If an 
inexperienced enthusiast for legal symmetry observes, 
in proposing an amendment, that his terms will not affect 



ROMAN AND ENGLISH LEGISLATION 737 

the substance, though they will improve the form, of 
the clause, he is impatiently rebuked for occupying the 
time of the House with what ' will make no difference.' 
On the other hand, changes in substance are constantly 
made in Committee which have the effect of rendering 
the form of the measure worse than when it came from 
the draftsman's hands. Clauses are put in or struck out, 
exceptions are added, references to other statutes are 
inserted, which make the sense of the enactment diffi- 
cult to follow and its construction uncertain. Some- 
times these faults are corrected in that later considera- 
tion which is called the Report stage. Sometimes they 
are not, either because they have escaped notice, or 
because the Ministry are in a hurry, and do not wish to 
risk the further raising of questions likely to give 
trouble. The House of Lords ought to correct all such 
blemishes. But it seldom does so, either from indo- 
lence, or because it does not wish to differ with the 
House of Commons except where it has some class in- 
terest, political or economic, to contend for. In fact, 
that function of revision which modern theory attri- 
butes to the House of Lords is not discharged. 

The facilities which Parliamentary procedure affords 
for delaying the progress of Bills in the House of Com- 
mons are so ample, not to say profuse, that the practice 
has grown up of drafting Bills, not in the form most 
scientifically appropriate, but in that which makes it 
easiest for them to be carried through under the fire 
of debate. To lay down those broad, clear, simple pro- 
positions of principle which conduce to the intelligibility 
and symmetry of the law is to invite opposition, and to 
make the process of opposing easier for those who de- 
sire to resist, but have not the technical knowledge 
needed for a minute discussion. To bury a principle out 
of sight under a mass of details; to avoid the declara- 
tion of a principle by enacting a number of small pro- 
visions, which cover most of the practically important 
points, yet do not amount to the declaration of a new 
47 



738 ROMAN AND ENGLISH LEGISLATION 

general rule ; to insert a number of exceptions, not in 
themselves desirable, but calculated to avert threatened 
hostility; to hide a substantial change under the cloak 
of a reference to some previous Act which is to be in- 
corporated with the Act proposed to be passed ; to deal 
with some parts of a subject in one year, and postpone 
some other parts to be dealt with in another measure 
next year, while leaving yet other parts to the chances 
of the future, though all ought to have been included 
in one enactment; — these are expedients which are re- 
pellent to the scientific conscience of the draftsman, but 
which are forced on him by the wishes of the Minister 
who is in charge of the Bill and who foresees both the 
objections that will be taken to it and the opportunities 
for obstructing it which parliamentary procedure af- 
fords. Yet the Minister may well plead that, with the 
limited time at his disposal, these expedients are essen- 
tial to the passing of his Bill. Any one can see what 
complication, what obscurity, what uncertainty in the 
law must needs result from this way of amending it. 

Thus it has come about that our English statute law 
is more bulky and even more unscientific in its form 
(whatever the excellence of its matter) than was the 
statute law of the Roman Empire when Theodosius II, 
and afterwards Justinian, set themselves to call order 
out of chaos. No Theodosius II, no Justinian, need be 
looked for in England. Yet much might be done to 
reduce the existing statutes into a more manageable 
mass, and something to improve the form in which they 
come from the hands of the legislature. The former 
work, previously in the hands of the Statute Law Com- 
mission, has since that body came to an end been en- 
trusted to another body called the Statute Law Com- 
mittee, which is conducting a general revision of the 
statutes. It has issued a Revised Edition coming down 
to a.d. 1886, and under its auspices a number of useful 
Consolidation Acts have been passed, whereby the Sta- 
tute Law, and in a few instances the Common Law also, 



ROMAN AND ENGLISH LEGISLATION 739 

relating to particular departments has been brought to- 
gether and enacted as an orderly whole. The more 
difficult enterprise of providing better methods for turn- 
ing out new law in a clear, concise, and scientifically 
ordered form, is rarely discussed, even by lawyers, and 
seems to excite no public interest. It raises many diffi- 
cult questions which this is not the place to treat of, 
so I will be content with observing that the remedy for 
the present defects of British statutes which seems least 
inconsistent with our parliamentary methods, would be 
to refer each Act, after it had passed both Houses, but 
before it received the royal assent, to a small committee 
consisting of skilled draftsmen and of skilled members 
of both Houses, who should revise the form and lan- 
guage of the Act in such wise as, without in the least 
affecting its substance, to improve its arrangement and 
its phraseology, the Act being formally submitted once 
more to both Houses before the royal assent was given, 
so as to prevent any suspicion that a change of sub- 
stance had been made. It is, however, unlikely that 
Parliament will consent to any proposal of this nature ; 
and even if some such expedient were adopted it would, 
at least in some cases, fail to remove the faults above 
described, because they are necessarily incident to legis- 
lation by large assemblies on matters which excite popu- 
lar feeling and involve political controversy. 



X. Some Reflections suggested by the History 
of Legislation. 

The chief reflections which a study of Roman and 
English modes of law-making seem to impress upon the 
inquirer's mind are the three following. 

The first is that the law of best scientific quality is 
that which is produced slowly, gradually, tentatively, 
by the action of the legal profession. At Rome it was 
produced by the unofficial jurists under the Republic, 



740 ROMAN AND ENGLISH LEGISLATION 

by the authorized jurists under the earlier Empire, by 
the magistrates who framed and went on constantly 
revising the Edicts from the time of the Punic Wars to 
that of Hadrian. In England it has been produced by 
the writers of text-books, but still more by the judges 
from the time of Glanvil and Bracton down to our own 
day. Our private law is as much a growth of time as 
is our Constitution, or as are our ideas on such subjects 
as economics or ethics. What has been true of the past 
will be true of the future; and though we can foresee 
no changes in the future comparable to those which 
have built up the existing fabric of our law out of the 
customs of the thirteenth century, we must expect the 
process of change to continue as long as life itself, and 
must beware lest by any attempt at finality we should 
check a development which is the necessary concomitant 
of health and energy. 

The second is that the special point wherein the 
Roman system had an advantage over our own, and 
indeed over that of all modern countries, was the exist- 
ence of an organ of government specially charged with 
the duty of watching, guiding, and from time to time 
summing up in a concise form, the results of the natural 
development of the law. The Praetor with his Edict 
is the central figure in Roman legal history, and a unique 
figure in the history of human progress. The Roman 
statutes of the Republic were not, except perhaps in 
their brevity, superior to our statutes down to the time 
of George III. The imperial constitutions, especially 
the later ones, are inferior in substance and perhaps 
not better in form than our later English statutes. The 
treatises of the Roman lawyers, if more convenient in 
point of form than our volumes of Reports, contained 
discussions not more acute and subtle, nor so great a 
wealth of matter ; and they were not more free from dis- 
crepancies. But neither England nor the United States 
has ever had or can have any one who could conduct 
legal reforms in such a way as did the Praetor. 



ROMAN AND ENGLISH LEGISLATION 741 

A third reflection is that the various departments of 
legislation are not equally well suited to be developed 
by one and the same organ of legislation. Administra- 
tive law can hardly be created except by the direct 
action of the sovereign power in the State, whether the 
monarch or the Legislative Assembly acting at the in- 
stance of the Executive. In every country that kind of 
law has been so created, and its growth belongs to 
a comparatively late stage in the progress of a State. 
As the need for a more elaborate civil and military 
administration increases, so does the organ appropriate 
for legislating on such matters become evolved. A very 
large part of recent legislation in England 1 and in the 
United States belongs to this category, and similarly 
a large part of the Codes of Theodosius II and of Jus- 
tinian are filled by such matters. 

A system of procedure, civil and criminal, with the 
judicial machinery required to work it, may be created 
either by the direct legislative action of the supreme 
power, or by custom and the action of the Courts. Both 
at Rome and in England it was through usage and by 
the Courts themselves that the earlier system was slowly 
moulded ; both at Rome and in England it was direct 
legislation that established the later system. Functions 
discharged by both the Praetor and the Chancellor are 
the offspring of custom and not of statute. But the 
judicial system of the Roman Empire, as well as the 
mode of procedure by formulae (established by the 
Lex Acbutia probably about b.c. 200) and the criminal 
quaestioncs perpetaae of the later Republic, and simi- 
larly all the changes made in English procedure and 
the English Courts during the last two centuries, cul- 
minating in the sweeping reconstruction effected by 
the Judicature Act of 1873, were the work of direct 
legislation. 

Criminal law has everywhere grown out of Custom, 
and has in all civilized States been largely dealt with by 

1 According to Sir C. P. Ilbert {op. cit.) nine-tenths. 



742 ROMAN AND ENGLISH LEGISLATION 

direct legislation. In most European countries it has 
been codified by statute, to the general satisfaction of 
the people ; and the conspicuous success of the Indian 
Penal Code shows that English criminal law is suscepti- 
ble of being so treated. Thus we may say that all the 
branches of law which I have enumerated are fit matters 
for direct legislation by the sovereign power, and less 
fit to be left to jurists and magistrates. 

As to private law in the narrower sense of the term, 
the law of property, of inheritance, of contracts, of torts, 
and so forth, it has already been remarked that it was 
at Rome and is in England the offspring of Custom, that 
is to say, of the usages of the community, and of the 
reflections and discussions of lawyers, bringing these 
usages into a precise shape and developing them in 
points of detail, together with the decisions of judges 
stamping them as recognized in those points of detail as 
well as in their general principles. As time went on, 
direct legislation was more and more resorted to both at 
Rome and in England either to define or to change the 
law which jurists, magistrates, and judges had wrought 
out of materials provided by custom. It was often 
necessary, because there were faults in the law which 
the Courts had not the power, even if they had the 
wish, to alter. Yet direct legislation has seldom been 
successful except either in expunging such faults, or in 
systematizing what was already well settled. Compare, 
for instance, the modern law of negotiable instruments, 
built up by the custom of merchants and the Courts, and 
not reduced to the form of a statute till nearly every 
question had been thoroughly worked out by lawyers 
in the course of judicial practice, with the law of Joint 
Stock Companies, which is mainly the product of direct 
legislation. The former is as definite and practically 
convenient as the latter is confused and unsatisfactory. 
It is quite true that the latter topic is one which could 
not well have been left to usage and the Courts. Yet 
such b, comparison indicates the difficulties which con- 



ROMAN AND ENGLISH LEGISLATION 743 

front a legislature when it attempts to create de novo, 
that is to say, on general principles and without much 
help from custom. The law of Joint Stock Companies 
with limited liability is one of those departments which 
needs to be treated by the method of constant experi- 
ment, varying from time to time the remedies needed 
against the new forms in which fraud and trickery ap- 
pear, and meeting by fresh provisions the devices by 
which crafty men evade the rules intended to protect 
the unwary 1 . 

A magistrate like the Roman Praetor might perhaps 
deal with such a branch of law more effectively than 
can either an English judge or the English Parliament 
— more effectively than a judge, because his powers 
would be wider; more effectively than Parliament, be- 
cause be could more promptly and easily drop a pro- 
vision which had proved inefficient, and try the working 
of a new one without purporting to make it a part of 
the permanent law of the land. 

It follows from these considerations that some 
branches of the law are much more fit than others to 
be embodied in a code, and that the discussions, more 
frequent and more animated thirty years ago than they 
are to-day, as to the merits and drawbacks of codifica- 
tion, ought to have distinguished more carefully than 
they did between the adaptability to diverse depart- 
ments of law of a system of rules enacted in a form 
intended to be final. We may hope to have some light 
upon this subject from the working of the new German 
Code. In any case, it may be suggested that a society 
in which the ideas and habits that relate to any one side 
of its life are changing — as for instance those relating to 
the civil status of women have changed in England 
during the last fifty years, or in which the methods of 
business are changing, as those relating to joint stock 

1 It must, however, be added that the difficulties which surround this most un- 
satisfactory branch of our law are partly due to the recurring collision of two dif- 
ferent theories, that of Caveat emptor (let the buyer beware) and that which would 
exact uberrima fides (the amplest good faith) from a company promoter or director 



744 ROMAN AND ENGLISH LEGISLATION 

enterprise have changed both in England and America 
— does ill to stereotype in a form difficult to amend the 
particular legal rules which govern it at any given mo- 
ment, however adequately that form may for the moment 
embodv the substance of those rules. 



XV 

THE HISTORY OF LEGAL DEVEL- 
OPMENT AT ROME AND IN 
ENGLAND 

In the last preceding Essay the organs of legislation, 
and the methods whereby they were worked at Rome 
and in England respectively, were discussed and com- 
pared. A consideration of the course which legal change 
took, in its various phases of development, reform or 
decay, may be completed by inquiring into the general 
causes and forces which determined and guided the 
process of change. To justify the selection of Rome and 
England for comparison it is necessary to recur to two 
points only in which the history of institutions in these 
two States presents a remarkable analogy. Both have 
been singularly independent of outside influences in the 
development of their political character and their legal 
institutions. The only influence that seriously told on 
Rome was that of the Greeks: yet how thoroughly 
Roman all the institutions that ever had been Roman 
remained down till the second century of the Empire, 
after Hellenic influence had for more than two hundred 
years been playing freely and fully upon literature and 
thought ! So English institutions have been far less 
affected by external influences than have been those of 
any other part of European Christendom. In France, 
Italy, Germany, and Spain, the traces of Roman do- 
minion were never obliterated, and Roman law too, 



746 LEGAL DEVELOPMENT 

both through its traditions and through the writings 
which embody it, has always been a more potent factor 
than it ever was here. These countries have, moreover, 
borrowed more from each other than we have done from 
any one of them, except, perhaps, in the days when Nor- 
mandy gave a Continental tinge to the immature feu- 
dality of England. And, secondly, both Rome and Eng- 
land have extended their institutions over vast territories 
lying beyond their own limits. Each has been a con- 
quering and ruling power, and the process by which each 
grew into a World State from being, the one a City and 
the other a group of small but widely scattered rural 
tribes, offers striking points of resemblance as well as 
of contrast. I might add that there are similarities in 
the character of the two nations, similarities to which 
their success in conquering and ruling is due. But, for 
the moment, it is rather to law and institutions than 
to character that I seek to direct the reader's attention. 

Since the law of every country is the outcome and 
result of the economic and social conditions of that 
country as well as the expression of its intellectual 
capacity for dealing with these conditions, the causes 
which modify the law are usually to be sought in changes 
which have passed upon economic and social pheno- 
mena. When new relations between men arise, or when 
the old relations begin to pass into new forms, law is 
called in to adjust them. The part played by speculative 
theorists or by scientific reformers who wish to see the 
law made more clear and rational is a relatively small 
factor in legal change, and one which operates only at 
rare moments. The process of development, if not 
wholly unconscious, is yet spontaneous and irregular. 
Alterations are made, not upon any general plan or 
scheme, but as and when the need for them becomes 
plain, or when it has at least become the interest of some 
ruling person or class to make them. 

The relation of the general history, political, econo- 
mic, and social, to changes in laws and institutions is 



LEGAL DEVELOPMENT 747 

best seen at certain definite epochs. It is indeed true 
that in nations which have reached a certain stage of 
civilization the conditions of life, and the relations of 
men and classes to one another, never remain quite the 
same from generation to generation. Every mechanical 
discovery, every foreign war or domestic insurrection, 
every accession or loss of territory, every religious or 
intellectual movement leaves things somewhat different 
from what it found them. Nevertheless, though the pro- 
cess of change is, except in savage or barbarous peo- 
ples, practically constant and uninterrupted, it becomes 
at certain particular moments much more swift and pal- 
pable, rushing, so to speak, through rapids and over 
cataracts instead of gliding on in a smooth and equable 
flow. These are the moments when a nation, or its 
ruler, perceives that the economic or social transforma- 
tions which have been taking place require to be recog- 
nized and dealt with by corresponding changes in law 
and institutions, or when some political disturbance, or 
shifting of power from one class or group to another, 
supplies the occasion for giving effect to views or senti- 
ments hitherto repressed. Accordingly it is profitable 
to give special attention to these transitional epochs, 
because it is in them that the relation between causes 
and consequences can be studied most easily and on the 
largest scale. Let us see what are the epochs in Roman 
and in English history which may be selected as those 
marked by conspicuous legal or institutional changes 
before we examine the relations of these changes to the 
forces which brought them about. 

I. Five Chief Epochs of Legal Change at Rome. 

In the thousand years of Roman history that lie be- 
tween the first authentic records of the constitution and 
laws of the city, say 451 B.C., when the Decemviral Com- 
mission, which produced the laws of the Twelve Tables, 
was appointed, and 565 a.d., when Justinian died, hav- 



748 LEGAL DEVELOPMENT 

ing completed his work of codification and new legisla- 
tion 1 , we may single out five such epochs. 

i. The epoch of the Decemviral Legislation, when 
many of the old customs of the nation, which had been 
for the most part preserved by oral tradition, were writ- 
ten down, being no doubt modified in the process. 

2. The days of the First and Second Punic Wars, when 
the growth of population and trade, the increase of the 
number of foreigners resident in Rome, and the con- 
quest by Rome of territories outside Italy, began to 
induce the development of the Praetorship as an office 
for expanding and slowly remodelling the law. 

3. The end of the Republic and early days of the Em- 
pire, when there was a brilliant development of juridical 
literature, when the opinions of selected jurists received 
legal authority from the Emperor's commission, when 
the Senate was substituted for the popular assemblies as 
the organ of legislation, and when the administration of 
the provinces was resettled on a better basis — all these 
changes inducing a more rapid progress of legal reform. 

4. The reigns of Diocletian and Constantine, when 
imperial legislation took a fresh and vigorous start, and 
when the triumph of Christianity brought a new, a 
powerful, and a widely pervasive force into the field of 
politics and legislation. 

5. The reign of Justinian, when the plan of codifica- 
tion whose outlines Julius Caesar had conceived, and 
which Theodosius II had done something to carry out, 
was at last completed by the inclusion of the whole law 
of Rome in two books containing the pith of the then 
existing law, and when many sweeping reforms were 
effected by new legislation. 

It is less easy to fix upon epochs of conspicuous 



1 It is convenient to stop with Justinian, because he gave the law the shape in 
which it has influenced modern Europe, and because our historical data became 
much more scanty after his time. But of course the history of the law goes on to 
a.d. 1204, and in a sense even to a.d. 1453, in an unbroken stream, the codes issued 
by the later Emperors, and especially the Basilica of Leo the Philosopher, being 
based upon Justinian's redaction. 



LEGAL DEVELOPMENT 749 

change in English legal institutions and law, because 
English development has been on the whole more gra- 
dual, and because the territorial limits of the area af- 
fected by change have not expanded to anything like 
the same extent as did the territories that obeyed Rome. 
Rome was a City which grew to be the civilized world: 
the Urbs became Orbis Terr arum. The English were, 
and remain, a people inhabiting the southern part of 
an island, and beyond its limits they have expanded 
(except as respects Ireland), not by taking in new ter- 
ritories as parts of their State, but by planting semi- 
dependent self-governing States which reproduce Eng- 
land 1 . However, one may, for the sake of a comparison 
with Rome, take the five following epochs as those at 
which the process of change became the most swift and 
the most effective for destruction and creation. 

II. Five Epochs of Legal Change in England. 

i. The time of Henry II, when the King's Courts be- 
came organized, and began to evolve a Common Law 
for the whole realm out of the mass of local customs. 

2. The times of Edward I and Edward III, when the 
solidification of the kingdom saw the creation of a partly 
representative legislature, the enactment of important 
statutes, and the establishment of a vigorous organ for 
the development and amendment of the law in the 
Chancellorship. 

3. The time of Henry VIII and Edward VI, when the 
progress of society and an ecclesiastical revolution 
caused the passing of several sweeping legal reforms, 
separated the courts and the law of England from a 
system of jurisprudence which had influenced it in com- 
mon with the rest of Western Christendom, and perma- 
nently reduced the power of the clergy and of clerical 
ideas. 

1 I do not include India or the Crown Colonies, because the population of these 
is not English. 



750 LEGAL DEVELOPMENT 

4. The epoch of the Great Civil War and Revolution, 
when legislative authority, hitherto shared or disputed 
by the Crown and the Houses of Parliament, passed 
definitely to the latter, and particularly to the popular 
branch of Parliament, and when (as a consequence) the 
relation of the Monarch to the landholding aristocracy, 
and that of the State to its subjects in religious matters, 
underwent profound alterations. 

5. The reigns of William IV and Victoria, when the 
rapid growth of manufacturing industry, of trade, and of 
population, coupled with the influence as well of new 
ideas in the sphere of government as of advances made 
in economic and social science, has shaken men loose 
from many old traditions or prejudices, and has, while 
rendering much of the old law inapplicable, made a great 
deal of new legislation indispensable. 

Now let us consider what are the forces, influences, 
or conditions which at all times and everywhere become 
the sources and determining causes of changes in laws 
and institutions, these latter being that framework which 
society constructs to meet its needs, whether admini- 
strative or economic or social. 

Five such determining causes may be singled out as 
of special importance. They are these. 

1. Political changes, whether they consist in a shift- 
ing of power as between the classes controlling the gov- 
ernment of a country, or affect the structure of the 
governmental machinery itself, as for instance by the 
substitution of a monarch for an assembly or of an as- 
embly for a monarch. 

2. The increase of territory, whether as added to and 
incorporated in the pre-existing home of a nation or as 
constituting a subject dominion. 

3. Changes in religion, whether they modify the 
working of the constitution of the country or in- 
volve the abolition of old laws and the enactment of new 
ones. 

4. Economic changes, such as the increase of indus- 



LEGAL DEVELOPMENT VA 

trial production or the creation of better modes of com- 
munication, with the result of facilitating the exchange 
of commodities. 

5. The progress of philosophic or scientific thought, 
whether as enouncing new principles which ultimately 
take shape in law, or as prompting efforts to make the 
law more logical, harmonious and compendious. 

The influence of other nations might be added, as a 
sixth force, but as this usually acts through speculative 
thought, less frequently by directly creating institutions 
and laws, it may be deemed a form of No. 5. 

The two last of these five sources of change, viz. com- 
merce and speculative or scientific thought, are con- 
stantly, and therefore gradually at work, while the other 
three usually, though not invariably, operate suddenly 
and at definite moments. All have told powerfully both 
on Rome and on England. But as the relative import- 
ance of each varies from one country to another, so we 
shall discover that some have counted for more in the 
case of Rome, some in that of England. The differences 
throw an instructive light on the annals of the two 
nations. 

III. Outline of Legal Changes at Rome. 

The legal history of Rome begins with the law of 
the Twelve Tables. This remarkable code, which, it 
need hardly be said, was neither a code in the modern 
sense, nor in the main new law, but rather a concise 
and precise statement of the most important among the 
ancient customs of the people, dominated the whole of 
the republican period, and impressed a peculiar cha- 
racter upon the growth of Roman law from the begin- 
ning till the end of the thousand years we are regarding. 
It gave a sort of unity and centrality to that growth 
which we miss in many other countries, England in- 
cluded, for all Roman statutes bearing on private law 
were passed with reference to the Twelve Tables, 



752 LEGAL DEVELOPMENT 

nearly all commentaries grouped themselves round it, 
and when a new body of law that was neither statute 
nor commentary began to spring up, that new law was 
built up upon lines determined by the lines of the Twelve 
Tables, since the object was to supply what they lacked 
or to modify their enactments where these were too 
harsh or too narrow. Its language became a model for 
the form which later statutes received. It kept before 
the minds of jurists and reformers that ideal of a sys- 
tematic and symmetrical structure which ultimately took 
shape in the work of Theodosius II and Justinian. Now 
the law of the Twelve Tables was primarily due to po- 
litical discontent. The plebeians felt the hardship of 
being ruled by customs a knowledge of which was con- 
fined to the patrician caste, and of being thereby left at 
the mercy of the magistrate, himself a patrician, who 
could give his decision or exert his executive power at 
his absolute discretion, because when he declared him- 
self to have the authority of the law, no one, outside 
the privileged caste he belonged to, could convict him 
of error. Accordingly the plebs demanded the creation 
of a commission to draft laws defining the powers of 
the Consuls, and this demand prevailed, after a long 
struggle, in the creation of the Decemvirs, who were 
appointed to draft a body of general law for the nation. 
This draft was enacted as a Statute, and became thence- 
forth, in the words of Livy 1 , ' the fountain of all public 
and private law.' Boys learnt it by heart down to the 
days of Cicero, and he, despite his admiration for things 
Greek, declares it to surpass the libraries of all the 
philosophers 2 . 

For some generations there seem to have been com- 
paratively few large changes in private law, except that 

1 ' Decern tabularum leges quae nunc quoque in hoc immenso aliarum super alias 
acervatarum legum cumulo fons omnis publici privatique est iuris ' (iii. 24). 

2 ' Bibliothecas mehercule omnium philosophorum unus mihi videtur xii tabu- 
larum libellus, siquis legum f ontes et capita viderit, et auctoritatis pondere et utili- 
tatis ubertate superare ' (De Orat. i. 44). An odd comparison, and one in which 
there is more of patriotism than of philosophy. 



LEGAL DEVELOPMENT 753 

declaration of the right of full civil intermarriage be- 
tween patricians and plebeians, which the Twelve Tables 
had denied. But the knowledge of the days on which 
legal proceedings could properly be taken remained 
confined to the patricians for nearly a century and a 
half after the Decemvirs. The plebs had, however, been 
winning political equality, and three or four years after 
the time when the clerk Flavius revealed these pontifical 
secrets it was completed by the admission of the ple- 
beians to the offices of pontiff and augur. 

Meanwhile Rome was conquering Italy. The defeat 
of Pyrrhus in B.C. 275 marks the virtual completion of 
this process. A little later, the First Punic War gave 
her most of Sicily as well as Sardinia and Corsica, and 
these territories became provinces, administered by 
magistrates sent from Rome. She was thus launched 
on a policy of unlimited territorial expansion, and one 
of its first results was seen in two remarkable legal 
changes. The increase in the power and commerce of 
Rome, due to her conquests, had brought a large num- 
ber of persons to the city, as residents or as sojourners, 
who were not citizens, and who therefore could not sue 
or be sued according to the forms of the law proper 
to Romans. It became necessary to provide for the liti- 
gation to which the disputes of these aliens (peregrini) 
with one another or with Romans gave rise, and accord- 
ingly a Magistrate {Praetor peregrinus) was appointed 
whose special function it became to deal with such dis- 
putes. He was a principal agent in building up by 
degrees a body of law and a system of procedure out- 
side the old law of Rome, which received the name of 
Ius Gentium (the law of the nations) as being supposed 
to embody or be founded on the maxims and rules com- 
mon to the different peoples who lived round Rome, 
or with whom she came in contact 1 . Through the 
action of the older Urban Praetor much of this ius 
gentium found its way into the law administered to the 

1 As to the ius gentium see Essay XI, p. 570 sqq. 
48 



754 LEGAL DEVELOPMENT 

citizens, in the way described in the last preceding Essay. 
Similarly the Proconsuls and Propraetors, who held 
their courts in the subject provinces, administered in 
those provinces, besides the pure Roman law applicable 
to citizens, a law which, though much of it consisted of 
the local laws and customs of the particular province, 
had, nevertheless, a Roman infusion, and was probably 
in part, like the ins gentium, generalized from the cus- 
toms found operative among different peoples, and 
therefore deemed to represent general principles of jus- 
tice fit to be universally applied. The Edicts which 
embodied the rules these magistrates applied became a 
source of law for the respective provinces *. 

These remarkable changes, which may be said to be- 
long to the period which begins with the outbreak of 
the First Punic War (b.c. 264), started Roman law on 
a new course and gave birth to a new set of institutions 
whereby new territories, ultimately extended to em- 
brace the whole civilized world, were organized and 
ruled. It was through these changes that the law and 
the institutions of the Italian City became so moulded 
as to be capable not only of pervading and transforming 
the civilizations more ancient than her own, but of de- 
scending to and influencing the modern world. Now 
these changes, like those which marked the period of 
the Twelve Tables, had their origin in political events. 
In the former case it was internal discontent and unrest 
that were the motive forces, in the latter the growth of 
dominion and of trade, trade being the consequence, 
not so much of industrial development as of dominion. 
But in both cases — and this is generally true of the 
ancient world as compared with the modern — political 
causes play a relatively greater part than do causes 
either of an economic or an intellectual and speculative 
order 2 . 

1 As to this see Essay II, pp. 77, 78. 

a Ot course I do not mean to disparage the immense importance of economic 
causes always and everywhere, but in the ancient world, where communities were 
mostly smali, they tended more quickly to engender political revolutions, and thus 



LEGAL DEVELOPMENT 755 

How much is to be set down to external influences? 
The Roman writers tell us of the sending out of a 
body of roving commissioners to examine the laws of 
Athens and other Greek cities to collect materials for 
the preparation of the Twelve Tables. So too the con- 
tact of Rome with the Greek republics of Southern 
Italy in the century before the Punic Wars must have 
affected the Roman mind and contributed to the ideas 
which took shape in the ius gentium. Nevertheless any 
one who studies the fragments of the Twelve Tables 
will find in them comparatively few and slight traces of 
any foreign influence; and one may say that both the 
substance of the Roman law and the methods of pro- 
cedure it followed remain, down till the end of the Re- 
public, so eminently national and un-Hellenic in their 
general character that we must assign a secondary part 
to the play of foreign ideas upon them. 

The next epoch of marked transition is that when the 
Empire of Rome had swollen to embrace the whole of 
the West except Britain and Western Mauretania, and 
the whole of the known East except Parthia 1 . It was 
the epoch when the Republican Constitution had broken 
down, not merely from internal commotions, but under 
the weight of a stupendous dominion, and it was also the 
epoch when the philosophies of Greece had made the 
Roman spirit cosmopolitan, and dissolved the intense 
national conservatism in legal matters which distin- 
guished the older jurists. Here, therefore, two forces 
were at work. The one was political. It laid the founda- 
tions of new institutions, which ripened into the auto- 
cracy of the Empire. It substituted the Senate for the 
popular Assembly as the organ of legislation. It gave 

their action became involved with politics. In the modern world, where nations 
are mostly large and political change is usually more gradual, economic factors fre- 
quently tell upon society and affect the working of institutions without leading to 
civil strife. The more the world develops and settles down, and the further it 
moves away from its primitive conditions, the greater becomes the relative signifi- 
cance of the economic elements. 

1 ' Parthos atque Britannos' are aptly coupled by Horace as the two peoples that 
remained outside the Empire. 



756 LEGAL DEVELOPMENT 

the head of the State the power of practically making 
law, which he exercised in the first instance partly as 
a magistrate, partly through the practice of issuing to 
selected jurists a commission to give answers under his 
authority 1 . The other force was intellectual. It made 
the amendment of the law, in a liberal and philosophical 
sense, go forward with more boldness and speed than 
ever before, until the application of the new principles 
had removed the cumbrousness and harshness of the 
old system. But it should be remembered that this 
intellectual impulse drew much of its power from politi- 
cal causes, because the extension of the sway of Rome 
over many subject peoples had accustomed the Romans 
to other legal systems than their own, and had led them 
to create bodies of law in which three elements were 
blent — the purely Roman, the provincial, and those 
general rules and maxims of common-sense justice and 
utility which were deemed universally applicable, and 
formed a meeting-ground of the Roman and the pro- 
vincial notions and usages. So here too it is political 
events that are the dominant and the determining factor 
in the development both of private law and of the im- 
perial system of government, things destined to have 
a great future, not only in the form of concrete institu- 
tions adopted by the Church and by mediaeval mo- 
narchy, but also as the source of creative ideas which 
continued to rule men's minds for many generations. 

Nearly three centuries later we come to another 
epoch, when two forces coincide in effecting great 
changes in law and in administration. The storms that 
shook and seemed more than once on the point of shat- 
tering the fabric of the Empire from the time of Severus 
Alexander to that of Aurelian (a.d. 235 to 270), had 
shown the need for energetic measures to avert destruc- 
tion; and the rise to power of men of exceptional capa- 
city and vigour in the persons of Diocletian and Con- 
stantine enabled reforms to be effected which gave the 

1 Described in the last preceding- Essay, pp. 677, 678. 



LEGAL DEVELOPMENT 757 

imperial government a new lease of life, and made its 
character more purely despotic. Therewith came the 
stopping of the persecution of the Christians, and pre- 
sently the recognition of their religion as that which the 
State favoured, and which it before long began to pro- 
tect and control. The civil power admitted and sup- 
ported the authority of the bishops, and when doctrinal 
controversies distracted the Church, the monarchs, be- 
ginning from Constantine at the Council of Nicaea, en- 
deavoured to compose the differences of jarring sections. 

These changes told upon the law as well as upon in- 
stitutions. New authorities grew up within the Church, 
and these authorities, after long struggles, obtained 
coercive power. Not only was the spirit of legislation 
in such subjects as slavery and the family altered — 
marriage and divorce, for instance, began to be regarded 
with new eyes — but a fresh field for legislation was 
opened up in the regulation of various ecclesiastical or 
semi-ecclesiastical matters, as well as in the encourage- 
ment or repression of certain religious opinions. The 
influence on law of Greek customs, which seemed to 
have been expunged by the extension of citizenship to 
all subjects a century before Constantine, makes itself 
felt in his legislation. 

Besides these influences belonging to the sphere of 
politics and religion, economic causes, less conspicuous, 
but of grave moment, had also been at work in under- 
mining the social basis of the State and inducing efforts 
to apply new legislative remedies. Slavery and the de- 
cline of agriculture, particularly in the Western half 
of the Empire, throughout which there seems to have 
been comparatively little manufacturing industry, had 
reduced the population and the prosperity of the middle 
classes, and had exhausted the source whence native 
armies could be drawn. Thus social conditions were 
changing. The growth of that species of serfdom which 
the Romans called colonatus belongs to this period. The 
financial strain on the government became more severe. 



758 LEGAL DEVELOPMENT 

New expedients had to be resorted to. All these pheno- 
mena, coupled with the more autocratic character which 
the central government of the Empire took from Dio- 
cletian onwards, induced a greater and sometimes indeed 
a hasty and feverish exuberance of legislation, which 
was now effected solely by imperial ordinances. 

Industrial decay seems to have been more rapid in 
Western than in the Eastern provinces, though palpable 
enough in such regions as Thrace and Greece. But 
everywhere there was an intellectual decline, which ap- 
peared not least in the sinking of the level of juristic 
ability and learning. The great race of jurists who 
adorned the first two and a half centuries of the Empire 
had long died out. We hear of no fertile legal minds, 
no law books of merit deserving to be remembered, dur- 
ing the fourth and fifth centuries of our era. The mass 
of law had however increased, and the judges and prac- 
tising advocates were, except in the larger cities, less 
than ever capable of dealing with it. The substitution 
of Roman for provincial law effected by the Edict of 
the Emperor Antoninus Caracalla had introduced some 
confusion, especially in the Eastern provinces, where 
Greek or Oriental customs were deeply rooted, and 
did not readily give place to Roman rules. The em- 
perors themselves deplore the ignorance of law among 
practitioners : and presently it was found necessary to 
prescribe an examination for advocates on their admis- 
sion to the bar. Accordingly the necessity for collect- 
ing that which was binding law and for putting it into 
an accessible form became greater than ever. It had 
in earlier days been an ideal of perfection cherished by 
theorists; it was now an urgent practical need. It was 
not the bloom and splendour but the decadence of legal 
study and science that ushered in the era of codification. 
A century after the death of Constantine, the Emperor 
Theodosius II, grandson of Theodosius the Great, reign- 
ing at Constantinople from a.d. 408 to a.d. 450, issued 
a complete edition of the imperial constitutions in force, 



LEGAL DEVELOPMENT 759 

beginning from the time of Constantine, those of earlier 
Emperors having been already gathered into two collec- 
tions (compiled by two eminent jurists) in current use. 
Shortly before a statute had been issued giving full 
binding authority to all the writings (except the notes 
of Paul and Ulpian upon Papinian) of five specially fa- 
mous jurists of the classical age (Papinian, Paul, Gaius, 
Ulpian, Modestinus). The advisers of Theodosius II 
had intended to codify the whole law, including the 
ancient statutes and decrees of the Senate and Edicts 
of magistrates so far as they remained in force, as well 
as the writings of the jurists, but the difficulties were too 
great for them, and they contented themselves with a 
revised edition of the more recent imperial constitutions. 

Justinian was more energetic, and his codification of 
the whole law of the Empire marks an epoch of supreme 
importance in the history not merely of Rome but of 
the civilized world, for it is possible that without it very 
little of the jurisprudence of antiquity would have been 
preserved to us, so that the new nations which were 
destined to emerge from the confusion of the Dark 
Ages might have lacked the foundation on which they 
have built up the law of the modern world. It is indeed 
ah epoch which stands alone both in legal and in political 
history. 

Justinian's scheme for arranging and consolidating the 
law included a compilation of extracts from the writings 
of the jurists of the first three centuries of the Empire, 
together with a collection of such and so many of the 
Constitutions of the Emperors as were to be left in 
force, both collections being revised so as to bring the 
contents of each into accord and to harmonize the part 
of earlier date (viz. that which contained the extracts 
from the old jurists) with the later law as settled by 
imperial ordinances. It was completed in the space of 
six years only — too short a time for so great a work. 
It was followed by a good deal of fresh legislation, for 
the Emperor and his legal minister Tribonian, having 



760 LEGAL DEVELOPMENT 

had their appetite whetted, desired to amend the law 
in many further points and reduce it to a greater sym- 
metry of form and perfection of substance. The Em- 
peror moreover desired, for Tribonian was probably 
something of a Gallio in such matters, to give effect to 
his religious sentiments both by laying a heavy hand on 
heretics and by making the law more conformable to 
Christian ideas. Thus the time of Justinian is almost 
as significant for the changes made in the substance of 
the law as for the more compendious and convenient 
form into which the law was brought. 

Some thirty years before the enactment of Justinian's 
Codex and Digest (which, though intended for the whole 
Empire, did not come into force in such Western pro- 
vinces as had already been lost) three collections of 
law had been made by three barbarian kings for the 
governance of their Roman subjects. These were the 
Edictum of Theodorich, King of the East Goths, pub- 
lished in a.d. 500, the Lex Romana Visigothorum, com- 
monly called the Breviarium Alaricianum, published by 
Alarich II, King of the West Goths (settled in Aqui- 
taine and Spain), in a.d. 506, a year before his overthrow 
by Clovis, and the Lex Romana Burgundioniim, published 
by the Burgundian King Sigismund in the beginning 
of the sixth century. These three compilations, each 
of which consists of a certain number of imperial Con- 
stitutions, with extracts from a few jurists, ought to 
be considered in relation to Justinian's work, partly be- 
cause each of them did for a part of the Roman West 
what he did for the East, and, as it turned out, for Italy 
and Sicily also, when Belisarius reconquered those coun- 
tries for him, and partly because they were due to the 
same need for accessible abridgements of the huge mass 
of confused and scattered law which prompted the action 
of Justinian himself. They are parts of the same move- 
ment, though they have far less importance than Jus- 
tinian's work, and, unlike his, include little or no new 
law. 



LEGAL DEVELOPMENT 761 

The main cause of the tendency to consolidate the 
law and make it more accessible was the profusion with 
which Diocletian and his successors had used their 
legislative power, flooding the Empire with a mass of 
ordinances which few persons could procure or master, 
together with the decline of legal talent and learning, 
which made judges and advocates unable to compre- 
hend, to appropriate and to apply the philosophical prin- 
ciples and fine distinctions stored up in the treatises of 
the old jurists. Here, therefore, political and intellectual 
conditions, conditions rather of decline than of progress, 
lay at the root of the phenomenon. But in the case of 
Justinian something must also be credited to the en- 
lightened desire which he, or Tribonian for him, had 
conceived of removing the complexities, irregularities 
and discrepancies of the old law, bringing it nearer to 
what they thought substantial justice, and presenting it 
in concise and convenient form. Plato desired to see 
philosophy in the seat of power, and in Justinian philo- 
sophic theory had a chance such as it seldom gets 
of effecting permanently important changes by a few 
sweeping measures. Yet theory might have failed if 
it had not been reinforced by the vanity of an autocrat 
who desired to leave behind him an enduring monument. 

This rapid survey has shown us that two forces were 
always operative on the development of Roman law — 
internal political changes and the influence of the sur- 
rounding countries. As Rome conquered and Roman- 
ized them, they compelled her institutions to transform 
themselves, and her law to expand. Economic condi- 
tions, speculative thought and religion had each and alL 
of them a share in the course which reforms took, yet 
a subordinate share. 



762 LEGAL DEVELOPMENT 

IV. Outline of the Progress of Legal Changes 
in England. 

Let us now turn to England and see what have been 
the forces that have from time to time brought about 
and guided the march of legal change, and what have 
been the relations of that change to the general history 
of the country. 

As with Rome we began at the moment when the 
ancient customs were first committed to writing and 
embodied in a comprehensive statute, so in England it 
is convenient to begin at the epoch when the establish- 
ment of the King's Courts enabled the judges to set 
about creating out of the mass of local customs a body 
of precedents which gave to those customs definiteness, 
consistency and uniformity. Justice, fixed and unswerv- 
ing justice, was in the earlier Middle Ages the chief 
need of the world, in England as in all mediaeval coun- 
tries; and the anarchy of Stephen's reign had disposed 
men to welcome a strong government, and to acquiesce 
in stretches of royal power that would otherwise have 
been distasteful. Henry II was a man of great force 
of character and untiring energy, nor was he wanting 
in the talent for selecting capable officials. He had to 
struggle, not only against the disintegrating tendencies 
of feudalism, but also against the pretensions of the 
churchmen, who claimed exemption from his jurisdic- 
tion, and maintained courts which were in some direc- 
tions formidable rivals to his own. He prevailed in 
both contests, though it was not till long after that the 
victory was seen to have remained with the Crown. 
It was his fortune to live at a time when the study of 
law, revived in the schools of Italy, had made its way 
to England, where it was pursued with a zeal which 
soon told upon the practice of the Courts, sharpening 
men's wits and providing for them an arsenal of legal 
weapons. It is true that the law taught at the Universi- 
ties was the Roman law, and that the practitioners were 



LEGAL DEVEL0PMEN1 763 

almost entirely ecclesiastics. Now the barons, however 
jealous they might be of the Crown, were not less 
jealous of ecclesiastical encroachments and of the 
imperial law. They could not prevent judges from 
drawing on the treasures which the jurists of ancient 
Rome had accumulated, but they did prevent the 
Roman law from becoming recognized as authori- 
tative; so that whatever it contributed to the law of 
England came in an English guise, and served rather 
to supplement than to supersede the old customs of 
the kingdom. 

In this memorable epoch, which stamped upon the 
common law of England a character it has never lost, 
the impulse which the work of law-making received 
came primarily from the political circumstances of the 
time, that is, from the desire of the king to make his 
power as the receiver of taxes and the fountain of jus- 
tice effective through his judges, and from the sense in 
all classes that the constant activity of the Courts in 
reducing the tangle of customs to order, no less than 
the occasional activity of the king when he enacted with 
the advice and consent of his Great Council statutes 
such as the Constitutions of Clarendon, was a bene- 
ficial activity, wholesome to the nation. But though po- 
litical causes were the main forces at work, much must 
also be allowed to the influence of ideas, and particu- 
larly to the intellectual stimulus and the legal training 
which the study of Roman jurisprudence had given to 
the educated men who surrounded and worked for the 
king and the bishops. 

The development of English institutions has been at 
all times so slow and so comparatively steady that it is 
not easy to fix upon particular epochs as those most 
conspicuously marked by change. However I take the 
epoch of Edward I and Edward III. Under Edward I,. 
whose reign was one of comparative domestic tranquil- 
lity, the organ of government whose supreme legisla- 
tive authority was to become unquestioned took its final 



764 LEGAL DEVELOPMENT 

shape in passing from a Great Council of magnates to 
an Assembly consisting of two Houses, in one of which 
the chief tenants of the Crown sat, while the other was 
composed of representatives of the minor tenants and of 
boroughs. Under his grandson the chief judicial Mini- 
ster of the Crown began to sit as a Court, granting re- 
dress in the name of the Crown in cases or by methods 
which the pre-existing Courts were unable or unwilling 
to deal with. Parliament passed under Edward I some 
statutes of the first magnitude, such as Quia Emptores 
and De Donis Conditionalibus, which impressed a peculiar 
character on the English land system, and introduced 
some valuable improvements in the sphere of private 
rights and remedies. But the legislature was, for two or 
three centuries, in the main content to leave the build- 
ing up of the law to the old Common Law Courts and 
(in later days) to the Chancellor. The action of this 
last-named officer was, during the fifteenth, sixteenth 
and seventeenth centuries, of capital importance, so that 
the establishment of his jurisdiction is one of the land- 
marks of our legal history. It was really a renewal, two 
hundred years after Henry II's time, of that king's ef- 
forts to secure the due administration of justice through 
the realm, but it grew up naturally and spontaneously, 
with less of conscious purpose than Henry II had shown. 
Both the legislature and the Chancellor were the out- 
come of political causes, but it must not be forgotten 
that in the methods taken by the Chancellor (hardly 
reduced to a system till the seventeenth century) we find 
the working of a foreign influence which thereafter dis- 
appears from English law, that, namely, of the civil and 
canon laws of Rome and of the Roman Church, for the 
Chancellors of the fourteenth and fifteenth centuries 
were all ecclesiastics and drew largely from Roman 
sources. 

The days of the Reformation bring two new and 
powerful influences to bear upon laws and institutions. 
One of these influences is economic, the other religious. 



LEGAL DEVELOPMENT 765 

The growth of industry and trade had so far disinte- 
grated the old structure of society and brought about 
new conditions that not a few new laws, among which 
the most familiar and significant are the Statute of Uses 
and the Statute of Wills, were now needed. The nation 
was passing out of the stiffness of a society based on 
landholding and recognizing serfdom into a larger and 
freer life. At the same time the religious revolution 
which severed it from Rome, which was accompanied 
by the dissolution of the monasteries, and which ended 
by securing the ascendency of a new body of theological 
ideas and of simpler forms of worship, involved many 
legal changes. The ecclesiastical courts were shorn of 
most of their powers, and the law they administered was 
cut off from the influences that had theretofore moulded 
and dominated it. The position of the clergy was al- 
tered. New provisions for the poor soon began to be 
called for. New tendencies, the result of a bolder spirit 
of inquiry, made themselves felt in legislation. One sees 
them stirring in the mind of Sir Thomas More. It was 
some time before the religious and economic changes, 
took their full effect upon the law. But nearly all the 
remarkable developments that make the time of Henry 
VIII and Elizabeth an epoch of legal change, may be 
traced not so much to politics as to the joint influence 
of commerce (including the growth of personal, as dis- 
tinguished from real, property) and of theology. Even 
the oceanic power and territorial expansion of England, 
which began with the voyages of Drake and the founda- 
tion of the Virginia Company and of the East India 
Company, did not affect either the law or the institu- 
tions of the country. The establishment of distant set- 
tlements was largely the result of the growing force of 
commercial enterprise, in which there was at first very 
little of political ambition, though it cordially lent itself 
to a political antagonism first to Spain and then to 
France. 

With the time of the Great Civil War we return to 



766 LEGAL DEVELOPMENT 

an era in which, though religion and commerce con- 
tinue to be potent forces, the first place must again be 
assigned to political causes. The struggle which over- 
threw the old monarchy effected two things. It ex- 
tinguished the claims of the Crown to a concurrent 
legislative or quasi-legislative power. The two Houses 
of Parliament were established as an engine for effect- 
ing legal changes, prompt in action and irresistible in 
strength 1 . Towards this England had long been slowly 
tending, as during a century before Augustus Rome 
slowly tended to a monarchy. The work was completed 
at the Boyne and Aughrim, but the decisive blow was 
struck at Naseby. And, secondly, it occasioned the 
accomplishment of several broad and sweeping reforms 
in institutions as well as in law proper. A Parliamentary 
Union of England, Scotland and Ireland was effected 
which, though annulled by the Restoration, was a signifi- 
cant anticipation of what the following century was to 
bring. The old system of feudal tenure and the relics 
of feudal finance were abolished. New provisions were 
made, and old ones confirmed and extended, for the 
protection of the freedom of the subject in person and 
estate. Commercial transactions were regulated, per- 
haps embarrassed, by a famous enactment (the Statute 
of Frauds) regarding the evidence required to prove a 
contract. Such of these things as lay outside the purely 
political sphere were due partly to the development of 
industry and commerce, which had gone on apace dur- 
ing the reign of James I, and was resumed during the 
government of Cromwell and Charles II, partly to that 
sense which political revolutions bring with them, that 
the time has come for using the impulse of liberated 
forces to effect forthwith changes which had for a long 
time before been in the air. On a still larger scale, it 
was the Revolution and Empire in France that led to 

1 As Milton says : — 

' And that two-handed engine at the door 
Stands ready to strike once and strike no more.' 



LEGAL DEVELOPMENT 767 

the remodelling of French institutions and the enact- 
ment of Napoleon's Codes x . 

As usually happens, an era of abnormal activity in 
recasting institutions and in amending the law was fol- 
lowed by one of comparative quiescence. It was not 
till the middle of the reign of George III that the be- 
ginnings of a new period of transition were apparent, 
not till after the Reform Bill of 1832 that the largest 
among the many reforms towards which men's minds 
had been ripening were effected. These reforms, which 
have occupied the last sixty-seven years, have touched 
every branch of law. They include a great mitigation 
of the old severity of the criminal law and the intro- 
duction of provisions for repressing those new offences 
which are incident to what is called the progress of 
society. They have expunged the old technicalities of 
pleading by which justice was so often defeated. They 
have striven to simplify legal procedure, though they 
have not succeeded in cheapening it, and have fused 
the ancient Courts of Common Law with those of 
Equity. They have removed religious disqualifications 
on the holding of offices and the exercise of the suffrage. 
They have dealt with a long series of commercial pro- 
blems, and have in particular made easy the creation of 
corporations for business and other purposes, given 
limited liability to their members, and laid down many 
regulations for their management. They have altered 
the law of land, enlarging the powers of life owners, 
and rendering it easier to break entails. They have re- 
organized the fiscal system, simplified the customs 
duties, and established a tariff levied for revenue only. 
They have codified the law, mainly customary in its 
origin, relating to such topics as negotiable instruments, 
sale and partnership. They have, created an immense 
body of administrative law, extending and regulating 
the powers of various branches of the central govern- 

1 Although the Napoleonic government was in many things only completing 
work begun under Lewis the Fourteenth. 



768 LEGAL DEVELOPMENT 

ment, and, while remodelling municipal government) 
have created new systems of rural local government. 
As regards the central institutions of the country, seve- 
ral new departments of State have been called into 
being. Ecclesiastical property has been boldly handled, 
though not (except in Ireland) diverted to secular uses; 
a new Court of Appeal for causes coming from the 
extra-Britannic dominions of the Crown has been 
set up, and the electoral franchise has been repeatedly 
extended. 

These immense changes have been due to three in- 
fluences. The first was the general enlightenment of 
mind due to the play of speculative thought upon practi- 
cal questions which marked the end of last and the 
beginning of this century, and of which the most con- 
spicuous apostles were Adam Smith in the sphere of 
economics and Jeremy Bentham in the sphere of legal 
reform. The second was the rapid extension of manu- 
facturing industry and commerce, itself largely due to 
the progress of physical science, which has placed new 
resources at the command of man both for the produc- 
tion and for the transportation of commodities. The 
third influence was political, and was itself in large mea- 
sure the result of the other two, for it was the com- 
bination of industrial growth with intellectual emancipa- 
tion that produced the transfer of political power and 
democratization of institutions which went on from the 
Roman Catholic Emancipation Act of 1829 to the Local 
Government Act of 1894. Could we imagine this in- 
dustrial and intellectual development to have failed to 
work on political institutions as it in fact did work, it 
would hardly the less have told upon administration and 
upon private law, for the new needs would under any 
form of government, even under an oligarchy like that 
of George II's time, have given birth to new measures 
fitted to deal with them. The legislation relating to 
Joint Stock Companies (beginning with the Winding-Up 
Acts), which filled so important a place in the English 



LEGAL DEVELOPMENT 769 

Statute-book from 1830 to 1862, and which still con- 
tinues, though in a reduced stream, would under any- 
political conditions have been required owing to the 
growth of commerce, the making of railways, the in- 
creased need for the provision of water, gas and drain- 
age. And there went on, hand and hand with it, an 
equally needed development by the Courts of Equity 
of the law of partnership, of agency and of trusts, as 
applied to commercial undertakings. What the political 
changes actually did was to provide a powerful stimulus 
to reform, and an effective instrument for reform, while 
reducing that general distaste for novelties which had 
been so strong in the first half of the eighteenth century. 
If we now review the general course of changes in 
institutions and law in the two States selected for com- 
parison we shall be struck by two points of difference. 

V. Some Differences between the Development of 
Roman and that of English Law. 

The branch of private law which is most intimately 
connected with the social and economic habits of a 
nation, and which, through social and economic habits, 
most affects its character, is that branch which touches 
Property, and the connexion of property with the Fa- 
mily. The particular form which the institutions relat- 
ing to property, especially immovable property, take, 
tells upon the whole structure of society, especially in 
the earlier stages of national growth. The rules, for 
instance, which govern the power of an owner to dis- 
pose of his property during his life or by will, and those 
which determine the capacity of his wife and children to 
acquire for themselves by labour or through gift, and 
to claim a share in his estate at his decease if he dies 
intestate, or even against his last will — these rules touch 
the richer and middle classes in a community and affect 
their life. So one may perhaps say that the develop- 
ment of this branch of law comes nearer than any other 
49 



770 LEGAL DEVELOPMENT 

to being the central line of legal development, bearing in 
mind that it is the needs and wishes of the richer and 
middle classes which guide the course of legal change. 
Here, however, we discover an interesting point of com- 
parison between Roman and English legal history. 

At Rome it is the history of the Family, especially as 
taken on its economic or pecuniary side, the most im- 
portant part of which is the Law of Inheritance, that 
plays the largest part. The old rules, which held the 
Family together, and vested in the father the control of 
family property, were at first stringent. From the third 
century B.C. onwards they began to be modified, but 
they were so closely bound up with the ideas and habits 
of the people that they yielded very slowly, and it was 
not till the bold hand of Justinian swept away nearly 
all that remained of the ancient rules of succession, and 
put a plain and logical system in their place, that the 
process was complete. 

In England, on the other hand, it is the Law of Land 
that is the most salient feature in the economico-legal 
system of the Middle Ages. Among the Teutons the 
Family had not been, within historic times at least, a 
group closely bound together as it was among the 
Italians, whereas the historical and political conditions 
of the eleventh and twelfth centuries had in Western 
Europe made landholding the basis of nearly all social 
and economic relations. Hence the land customs then 
formed took a grip of the nation so tight that ages 
were needed to unloose it. The process may be said 
to have begun with a famous statute (Quia Emptores) in 
the reign of Edward I. Its slow advance was quickened 
in the seventeenth century by political revolution; and 
the Act of 1660 which abolished knight service recorded 
a great change. The peaceful revolution of 1832 gave 
birth to the series of statutes which from 1834 down to 
our own day have been reshaping the ancient land sys- 
tem, but reshaping it in a more piecemeal and perplex- 
ing fashion than that in which Justinian reformed the 



LEGAL DEVELOPMENT 771 

law of succession by the 118th and 127th Novels. Pro- 
blems connected with landholding still remain in Eng- 
land, as they do in nearly all States, especially where 
population is dense; but they differ from the olcl pro- 
blems, and though disputes relating to the taxation of 
land give trouble, and may give still more trouble, ques- 
tions of tenure have lost the special importance which 
made them once so prominent in our legal history. 

Both Rome and England have been, far beyond any 
other countries except Russia, expanding States. Rome 
the City became Rome the World-State. The Folk of 
the West Saxons went on growing till it brought first 
the other kingdoms of South Britain, Teutonic and 
Celtic, then the adjoining isles of Ireland and Man, then 
a large part of North America, then countless regions 
far away over the oceans under the headship of the de- 
scendants of Cerdic and Alfred. But in the case of Rome 
this expansion by conquest was the ruling factor in poli- 
tical and legal evolution, the determining influence by 
which institutions were transformed. In England, on 
the other hand, it is the relations of classes that have 
been the most active agency in inducing political change, 
and the successive additions of territory have exerted 
a secondary influence on institutions and an insignifi- 
cant influence on law. Not only has English law been 
far less affected (save at the first two of the five epochs 
above described) by foreign law or foreign thought than 
Rome was, but the increase of England by the union, 
first of Scotland and then Ireland, and by the acquisi- 
tion of transoceanic dominions, has not interrupted the 
purely insular or national development of English law. 
The conquest of Ireland, which began in the twelfth cen- 
tury but was not completed till the seventeenth, made 
no difference, because Ireland, always since the twelfth 
century far behind England in material progress and 
settled social order, received a separate civil administra- 
tion with separate Courts. As these Courts admini- 
stered English law, they followed in the path which Eng- 



772 LEGAL DEVELOPMENT 

land had already travelled and did not affect the pro- 
gress of law in England. Nothing speaks more of the 
long-continued antagonism of the Teutonic and the 
Celtic elements in Ireland, and of the dominance of the 
Teutonic minority over the Celtic majority, than the 
practical identity of the common law in the two coun- 
tries, and the total absence of any Celtic customs in that 
law. The few and comparatively slight differences which 
exist to-day between the law of England and that of 
Ireland are all due to statute. One is the absence of 
judicial divorce in Ireland, which an Act passed so re- 
cently as 1857 introduced in England. The second is to 
be found in the law relating to land, largely altered by 
statutes passed for Ireland by the British Parliament 
of our own time. The third is the existence in Ireland of 
what are admitted to be exceptional and supposed to 
be temporary penal provisions, the last of which is the 
Prevention of Crime Act of 1887. As regards Scotland, 
when her king became king of England, and when, a 
century later, her Parliament was united with that of 
England, she retained her own law intact. In some few 
respects her law, founded on that of Rome, and her sys- 
tem of judicial administration are better than those of 
England, nor has she failed to contribute distinguished 
figures to the English bench and bar; but, as she stands 
far below England in population and wealth, she has 
affected the law of the larger country as little as the 
attraction of the moon affects the solid crust of the 
Earth. 

The vaster territorial expansion of the eighteenth and 
nineteenth centuries has told quite as little on the law 
of England as did the unions with Scotland and Ireland. 
When the English began to people what are now the 
self-governing colonies, and when India came under 
British sway, English law was too fully developed to be 
susceptible to influences from them, not to add that they 
were too distant to make any assimilation either desira- 
ble or possible. Had India lain no further from Eng- 



LEGAL DEVELOPMENT 773 

land than Sicily and the Greek cities lay from Rome, 
had she been as near the level of English civilization 
as those countries were to that of Roman civilization, 
and had she been conquered in the reign of Elizabeth 
instead of in the reign of George III, the history of 
English institutions and English law must have been 
wholly unlike what it has in fact been. These three 
differences measure the gulf which separates the course 
of English from that of Roman development. 

Another salient point in which the two States may be 
compared relates to the smaller part which purely poli- 
tical as compared with economic and intellectual changes 
have played in the development of English laws and in- 
stitutions. Although there is a sense in which every 
political change may be described as the result of an 
economic or intellectual change, or of both taken to- 
gether, still it is true that at Rome the desire to grasp 
political power counted for more in the march of events 
than it has done in England. 

Economic changes sometimes operate on politics by 
raising the material condition of the humbler class and 
thereby disposing and enabling them to claim a larger 
share of political power. This happened at Rome more 
frequently in the earlier than in the later days of the 
Republic. In England it has happened more in later 
times than it did in earlier. Sometimes, however, eco- 
nomic causes so depress the poor that their misery 
becomes acute or their envy intense, whence it befalls 
that they break out into revolt against the rich. This 
was on the point of happening more than once at Rome, 
but has been no serious danger in England since the 
days of Richard II. Sometimes, again, the growth of 
immense fortunes and the opportunities of gaining 
wealth through politics threaten the working of popular 
institutions. ~~ThTs occurred at Rome; and was one of 
the causes which brought the Republic to its death. It 
is a peril against which England has had, and may again 
have,-- to take precautions. 



774 LEGAL DEVELOPMENT 

Changes in thought and belief operate on politics 
either by weakening the deferential and submissive 
habits of the classes which have been excluded from 
power so that they insist on having their fair share of 
it, or by implanting in the minds of the middle and 
upper classes new ideas which grow strong enough to 
make them insist on bringing old-fashioned practice into 
accord with new and more enlightened theory. It was 
the concurrence of these two forms of intellectual change 
that gave its specially destructive character to the 
French Revolution. Ideas of course act most quickly 
and powerfully when they are such as rouse emotion, 
for that which remains a mere intellectual .concept or 
speculative opinion is not a thing to stir or to shake 
established institutions. The best illustration is to be 
found in religious beliefs. But the notion of Equality 
— that is to say, the notion that rights vested in every 
man as a man demand that every man shall be treated 
alike — has also proved an energetic explosive. Influ- 
ences of this kind counted for little at Rome. Neither 
have they, except in the form of religious beliefs, or 
when their force coincided with that exerted by religious 
convictions, become the source of strife or constitu- 
tional change in England. 

One may indeed say that the course of England's 
political development has been less interrupted by con- 
vulsions than that of any other great State, for even 
the scars made by the Civil War were before long healed, 
so that hardly any of the old institutions perished, 
though some of them passed into new phases. The new 
buildings which popular government has within the pre- 
sent century added to the old edifice are built out of 
the same kind of stone, and (if one may venture to pur- 
sue the metaphor) weather to the same colour. So the 
growth of our law, both public and private, both crimi- 
nal and civil, has been a gradual and quiet growth, due 
in the main to the steady increase in the magnitude and 
complexity of the industrial and commercial relations 



LEGAL DEVELOPMENT 775 

of life, which have made the law expand and improve at 
the bidding of practical needs. Where politics have 
affected the law, this has been through the rise of the 
humbler classes, a rise largely due to economic causes. 
So likewise the influence of ideas, of new views as to 
what law should be and how it should serve the com- 
munity, has been marked by few sudden crises, and has 
been ruled by practical good sense rather than by aspira- 
tions after a theoretical perfection. As. regards private 
law, this remark applies to the Romans also, although 
the constant strain placed upon their institutions by their 
territorial expansion as well as the differences between 
a City State and a large rural State exposed their politi- 
cal system to more frequent shocks and ultimately to a 
more radical transformation. 

Finally, it may be observed that the interest felt in 
law, and the amount of intellectual effort given to its 
development, was probably greater among the educated 
class in Rome than it has ever been in any large section 
of the English people. Romans of intellectual tastes 
had fewer things to think about, fewer subjects to at- 
tract or to distract them, than the English have had. 
Law was closely interwoven with public life. Country 
life and country sports, commerce, religion, travel and 
adventure, covered less of the mental horizon than these 
pursuits have covered to Englishmen of the upper or 
educated class, so that more of thought and time 
was left to be devoted to law. Nor were many Ro- 
mans carried off into other regions, like the Greeks, 
by the love of art, or of music, or of abstract specula- 
tion. 

From this reflection another arises, viz. that legal and 
constitutional studies, as a subject for research and 
thought, find the competition of other subjects more 
severe in England to-day than they did in the eighteenth 
century 1 . Historical inquiries, economic inquiries, and, 
to a still larger extent, inquiries in the realm of Nature, 

1 I owe this observation to my friend Mr. Dicey. 



776 LEGAL DEVELOPMENT 

claim a far larger share in the interest of eager and 
active minds now than in the days of Hobbes or Locke 
or Bentham. They have done much to extrude law from 
the place it once held among subjects of interest to un- 
professional persons. This is true all over the world; 
but legal topics, whether constitutional or belonging to 
the sphere of penal or administrative, or international 
or ordinary private law, seem now to claim even fewer 
votaries in England than they do in France or Germany, 
and certainly fewer than they do in the United States. 

VI. Observations on France and Germany. 

The sketch which I have sought to draw of the rela- 
tions of general history to legal history might have 
been with advantage extended to include the legal his- 
tory of other States, and particularly of two such im- 
portant factors in modern civilization as France and 
Germany. But, apart from the undue length to which 
an essay would stretch if it tried to cover so large a field, 
there is a good reason why we may deem these two 
countries less well suited for the sort of comparative 
treatment here essayed. Neither of them has had the 
kind of independent and truly national legal develop- 
ment which belonged to Rome and belongs to England. 
Each of them started on its career with a body of pre- 
existing law, made elsewhere, viz. the Roman law which 
had come down to France and to Germany from anti- 
quity. In Gaul, even in the parts most settled by the 
Franks, the law of the Empire held its ground, though 
everywhere largely modified by feudal land usages, and 
in the northern half of the country, when it had ceased to 
be Gaul and had become France, in the form of customs 
and not of written Roman texts. In Germany the old 
Teutonic customary law was by degrees (except as re- 
gards land rights) supplanted by the Corpus Iuris of Jus- 
tinian, in conformity with the idea, fantastic as that idea 
now appears to us, which regarded the Roman Em- 



LEGAL DEVELOPMENT 777 

perors from Julius Caesar down to Constantine the Sixth 
as the predecessors in title of the Saxon and Franconian 
Emperors. Thus neither the French nor the Germans 
built up on their own national foundation a law dis- 
tinctively their own. Moreover, both Germany and 
France stand contrasted with England as well as with 
Rome in the fact that neither country ever had a true 
central legislature or central system of law courts com- 
parable with the Parliament and King's Courts of Eng- 
land. The German Diet, though enactments were oc- 
casionally made in it with its consent by the sovereign, 
enactments which however were not universally obeyed, 
dealt very little with law proper, even in the days of its 
greatest strength. Still less were the French States- 
General, even before their long eclipse, an effective 
legislature. Thus the development of the law of both 
Germany and France fell mainly into the hands of the 
jurists, qualified to some extent in Germany by the 
ordinances enacted by the electors, landgraves, and 
other princes, as well as by the free imperial cities, and 
(in later days) by the kings whose dominions formed 
part of the decaying Empire, and qualified in post- 
mediaeval France by the ordinances of the king. In 
both countries it was upon the Roman law, as modified 
by custom, that the jurists worked, and hence in neither 
did a body of law grow up which was truly national, in 
the sense either of having a distinctive national quality 
or of embracing the whole nation or of having been 
enacted by a national legislature. The first complete 
unity given to law in France was given by Napoleon. 
His Code was based on the Roman law theretofore 
used, which had to a considerable extent been already 
codified under Lewis XIV; yet the creation of one Code 
for the whole country was a step so bold that it could 
hardly have been attempted except by an autocrat and 
on the morrow of a revolution. The first modern effort 
to give unity to law in Germany, itself an efflux of the 
aspiration for national unity, was made by the General 



778 LEGAL DEVELOPMENT 

Bills of Exchange Law (Wechsclordnung) (1848-1850), 
while a general Commercial Code {Gcmeines Handcls- 
gesctsbuch) enacted in various States between 1862 and 
1866 was re-enacted for the new Empire in 1871. The 
fuller unity long desired was attained in 1900, when the 
new general Code for the whole German Empire came 
into force. This similarity between the legal history of 
France and that of Germany seems the more curious 
when one remembers that, so far as mere political unity 
is concerned, France attained that unity comparatively 
early, one may say at the end of the fifteenth century, 
while Germany continued down till the extinction of 
the old Empire in 1806 to go on losing what political 
unity she had possessed. It was not till 1866 that she 
began to regain it, though the Customs Union of the 
German States, formed in 1829, had been a presage of 
what was coming. 

VII. Private Law least affected by Political 
Changes or Direct Legislation. 

One phenomenon is common to the legal history in 
all these nations. That part of the law which has the 
greatest interest for the scientific student, and the great- 
est importance for the ordinary citizen, the private civil 
law of family and property, of contracts and torts, has 
been the part least affected either by political changes or 
by direct legislation. It has been evolved quietly, slowly 
and almost imperceptibly, first by popular custom, then 
by the labours of jurists and the practice of the Courts. 
Direct legislation by the supreme power has stepped in 
chiefly to settle controversies between conflicting au- 
thorities, or to expunge errors too firmly rooted for 
judges to rectify, or to embody existing usage in a defi- 
nite and permanent form. In the sphere of private law, 
and even in that of criminal law (so far as not affected 
by politics), legislation scarcely ever creates any large 
new rule, and seldom even any minor rule which is 



LEU Ah DEVELOPMENT 779 

absolutely new, not an enlargement of something which 
has gone before. Pure legislative novelties mostly turn 
out ill. Fortunately, the good sense of Englishmen, 
like that of Romans, has rarely permitted them to 
appear. 

The parallel drawn between the history of Roman 
and that of English law is less instructive when we 
reach the later stages of that history. It cannot be made 
complete, not only because we know comparatively little 
of the inner condition and practical working of the 
Courts after the time of Constantine, but because there 
was after his time both a political and an intellectual 
decay, which few will profess to discover in the England 
of this century. The expansion and enrichment of the 
Roman system had stopped even before Constantine, 
while that of English Law is still proceeding \. In Eng- 
land commerce is still growing, education is still advan- 
cing, new and complicated problems are still emerging, 
so that many forces continue to work for the develop- 
ment of law. Though we cannot foresee what lines 
this development will follow we may feel sure that some 
of the old causes of change are disappearing. The demo- 
cratization of political institutions seems nearly com- 
plete, religious passions have grown cold, and all classes 
have been so fully admitted to a share in political power 
that any such bold reforms in central and local admini- 
stration, in procedure, in penal law, and in one or two 
departments of private civil law as followed the Reform 
Bill of 1832, seem improbable. In some departments 
the possibilities of further progress appear to be ex- 
hausted, though there are others, such as those con- 
cerned with questions of the right of combination among 
employers or among workmen, and the character which 
motive imparts to acts in themselves lawful on which 

1 Within two centuries after Justinian's time official abridgements of his Corpus 
Juris began to be issued, and it was virtually superseded in the end of the ninth 
century by the Basilica of the Emperor Leo the Philosopher. The action of his 
successors was ^rgely directed to cutting down the old law into a shape better 
fitted for the changed conditions of the Empire, and the declining intelligence of 
the people. 



780 LEGAL DEVELOPMENT 

the last word is far from having been said 1 . But there 
are at least two real difficulties which remain to be 
grappled with. One relates to the methods of legal pro- 
ceedings. Their cost is so great as to deter many per- 
sons from the attempt to enforce just claims, to impose 
a heavy and unfair burden upon successful litigants, and 
to furnish opportunities for blackmail (especially in libel 
cases) to men who are equally devoid of money and 
of scruples. All efforts to cheapen them have so far 
failed. The other problem relates to a matter of sub- 
stance. What are the general principles to be followed 
in empowering the State to regulate the conduct of 
individuals or groups of individuals, in permitting the 
central government or a local authority to compete with 
individuals in industrial enterprises, and in restricting 
the power of combinations formed for commercial or 
industrial objects? This group of problems are being 
daily pressed to the front by political forces on the 
one hand and by industrial progress on the other. They 
are as urgent in the United States as in Britain. Nor 
are they matters for legislation only, for cases frequently 
arise which the best legislation cannot count upon hav- 
ing provided for, and which it needs not only technical 
skill but also a philosophic grasp of principles on the 
part of the bar and bench to conduct to a solution. 
The experience of the ancient world and that of the 
Middle Ages throws little light upon them. But as they 
have appeared simultaneously in many modern nations, 
each may have something to learn from the others. 
Comparative jurisprudence has no more interesting field 
than this: nor is there any task in labouring on which 
an enlightened mind may find a wider scope for the de- 
votion of learning and thought to the service of the 
community. 

I am tempted to venture on some other predictions 
as to the influences that may be expected to work on 

1 The interest excited by cases such as those of the Mogul Steamship Company 
v. Macgregor and Allen v. /^^illustrates this. 



LEGAL DEVELOPMENT 781 

the legal changes of the coming century. But we have 
been pursuing an historical, not a speculative, inquiry, 
and it will be enough to suggest that industry and com- 
merce, as quickened by the progress of physical science, 
are likely to be factors of increasing power, and that the 
purely political element in the development of law will 
count for less than that contributed by the effort to 
readjust social conditions and to give effect to social 
aspirations. 



XVI 

MARRIAGE AND DIVORCE UNDER 
ROMAN AND ENGLISH LAW 

I. Introductory. 

In all communities that have risen out of the savage 
state, no legal institution is at once so universal, and 
also so fundamental, a part of their social system as is 
Marriage. None affects the inner life of a nation so 
profoundly, or in so many ways, ethical, social, and 
economic. None has appeared under more various 
forms, or been more often modified by law, when senti- 
ment or religion prescribed a change. In a famous 
passage which has been constantly quoted, and often 
misunderstood, Ulpian takes marriage as the type of 
those legal relations which are prescribed by the Law 
of Nature, and extends that Law so far as to make it 
govern the irrational creatures as well as mankind 1 . If 
then the relation be so eminently natural, one might 
expect it to be also uniform. Yet it so happens that 
there is no relation with which custom and legislation 
have, in different peoples and at different times, dealt so 
differently. Nature must surely have spoken with a very 
uncertain voice when, as the jurist says, she ' taught 
this law to all animals.' Nor does this infinite diversity 
show signs of disappearing. While in most branches 
of law the progress of parallel development in various 
civilized states is a progress towards uniformity, so that 

1 See Essay XI, p. 587. 



MARRIAGE AND DIVORCE 783 

the commercial law, for instance, of the chief European 
countries and of the United States is, as respects nine- 
teen-twentieths of its substance, practically identical, the 
laws of these same countries are, in what relates to the 
forms of contracting marriage, the effect of marriage 
upon property rights, the grounds for dissolving and 
modes of dissolving marriage, extremely different, and 
apparently likely to remain different. Even within the 
narrow limits of the United Kingdom, England and 
Scotland have each its own system. Ireland has a dif- 
ferent law from England in respect of the mode of 
solemnization; while, as respects divorce, the divergence 
goes so far that grounds are recognized as sufficient for 
divorce in Scotland which are not admitted in England, 
while in Ireland a divorce, except by private Act of 
Parliament, cannot be obtained at all. And the efforts 
to assimilate these three diverse systems made by re- 
formers during two or three generations have been fol- 
lowed by so little practical result that they have been of 
late years altogether dropped. 

Out of the long and obscure and intricate history of 
the subject, and out of the many still unsolved problems 
it presents, I propose to select one subject for discus- 
sion, viz. the history of the Roman law of the marriage 
relation, as compared with the English law, and par- 
ticularly with some of the later developments of English 
law in the United States. On the antiquities of the mat- 
ter, and in particular on the interesting and difficult 
questions relating to primitive forms of marriage, and 
to the polyandry which is supposed to have marked the 
earlier life of many peoples, I shall not attempt to touch. 
Neither can I do more than glance at the ecclesiastical 
history of the institution, important as the church has 
been in influencing civil enactments and moulding social 
sentiment. 

To elucidate the Roman system, some few technical 
details must be given, but I shall confine myself to 
those which are needed in order to facilitate a compari- 



784 MARRIAGE AND DIVORCE 

son between it and that of England, and to show how 
essentially the later Roman conception of the relation 
differed from that which Christianity created in mediae- 
val Europe. 

II. Character of Marriage in Early Law. 

When clear light first breaks upon the ancient world 
round the Mediterranean Sea we find that the relation 
of the sexes exists in three forms. The most savage 
tribes, such as those which Herodotus saw or heard of 
in Libya and Scythia, have no regular marriage at all. 
Some lived in a kind of promiscuity; some were pro- 
bably polyandrous. The Eastern peoples — Persians, 
Lydians, Babylonians, and so forth — are polygamous, 
as was Israel in the days of Moses and Solomon, though 
in a much lesser degree after the Captivity, and as was 
the Trojan Priam of the Homeric poems. The Western 
peoples, and especially the Greeks and the Italians, 
were, broadly speaking, monogamous, although con- 
cubinage superadded to lawful marriage, especially 
among the Greeks, was not unknown. The contrast of 
the East and the West was marked; and this particular 
difference was not only characteristic but momentous, 
since it presaged a different course for the social de- 
velopment of the two regions 1 . So when the Teutonic 
and Celtic peoples came later on the stage, they too 
were generally monogamous, though among the heathen 
Celts the tie seems to have been somewhat looser than 
among the Teutons, and a plurality of wives may have 
been not uncommon in heathen times. Tacitus, while 
dwelling on the sanctity of German marriages, observes 
that occasionally the chieftains had more than one wife, 
owing to the wish of other families for alliance with 
them 2 . Polygamy slowly died out of the East under 
Roman rule, though possibly never quite extinguished, 

1 Euripides (Androm. vv. 173-180) contrasts the marriage usages of barbarians 
and Greeks, and dilates (cf. v. 465 sqq.) on the evils of polygamy. 

2 Tac. Germ. c. xvii. 



MARRIAGE AND DIVORCE 735 

for we find prohibitions of it renewed by the Emperors 
down to Diocletian, before whose time all subjects had 
become citizens. It maintained itself in the Oriental 
court of the Sassanid kings of Persia, and was indeed 
one of the features of Persian life which most shocked 
the philosophers of the later Roman Empire. As there 
is no trace of it in the Roman law 1 , it need not concern 
us further, since it has never, except in the singular in- 
stance of the Mormons, reappeared in any of the com- 
munities which have been regulated either by Roman or 
by Teutonic law 2 . 

Before describing the Roman system, let us note three 
general features which belong to the marriage customs, 
not indeed of all, but certainly of most peoples in the 
earlier stages of civilization. They are worth noting, 
because they constitute the central threads of the his- 
tory of the relation during civilized times. 

(i) The marriage tie has more or less of a religious 
or sacred character, being generally entered into with 
rites or ceremonies which place it under supernatural 
sanctions. This is, of course, more distinctly the case 
where monogamy prevails. 

(2) In the marriage relation the husband has a pre- 
dominant position both as regards control over the per- 
son and conduct of the wife, and as regards property, 
whether that which was hers or that which was brought 
into common stock by her and by him. 

(3) The tie is comparatively easy of dissolution by the 
husband, less easily dissoluble by the wife. This is a 
natural consequence of the inferior position which she 
holds in early society. 

Although these three features are generally charac- 
teristic of the earlier stages of family law, they are not 
universally present; and their presence or absence in 

1 Although Julius Caesar, if we may credit Suetonius, caused a measure to be 
drafted for enabling him to marry as many wives as he liked for the sake of hav- 
ing legitimate issue (Suet. Julius, c. 52). 

» Among the Jews it was (though forbidden by Roman law) not formally abo- 
lished till the tenth century. 

50 



786 MARRIAGE AND DIVORCE 

any given community does not necessarily coincide with 
a lower or higher scale of civilization in that community. 
The temptation to generalize in these matters is natural, 
but it is dangerous. True as may seem the general pro- 
position, that the higher or lower position of women in 
any society is a pretty good index to the progress that 
society has made, there are too many exceptions to the 
rule for us to take it as a point of departure for inquiry. 
Nor can these exceptions be always accounted for by 
any one cause, such as race or religion. 

III. The Earlier Form of Roman Marriage Law. 

Now let us come to the Romans, of whom we may 
say that it is they who have built up the marriage law 
of the civilized world, partly by their action as secular 
rulers in pagan times, partly by their action as priests in 
Christian times. The other modifying elements, and 
particularly the Hebrew and Teutonic influences, which 
have worked upon the marriage laws of Christendom, 
are of quite inferior moment. 

Roman law begins with two phenomena which seem 
at first sight inconsistent. One is the complete subjec- 
tion of the wife to the husband on the legal side, as 
regards both person and property. The other is her 
complete equality on the social and moral side, as re- 
gards her status and the respect paid to her. 

In describing the nature of this subjection, one must 
make it clearly understood that, strictly speaking, it was 
not by the mere fact of marriage, that is to say, by the 
legal act necessary to constitute marriage, that a woman 
entered that position of absolute absorption into the 
legal personality of her husband which is so remarkable 
a feature of the old law. Whatever may have been the 
case in prehistoric times, we find that at the time when 
the Twelve Tables were enacted (b.c. 449) a marriage 
could be contracted without any forms or ceremonies 
whatever, by the sole consent of the parties; and that, 



MARRIAGE AND DIVORCE 787 

where this was the case, the husband did not acquire any 
power over the wife, and the latter retained whatever 
property she previously possessed. It was therefore not 
marriage per se that created the power of the husband, 
for a woman might be legally married and not be under 
the marital power. But although this ' free marriage,' 
as we may call it (the term is not Roman, but invented 
by modern jurists), was legally possible, the custom, and 
in old days the almost invariable custom, of the people 
was to add to the marriage a ceremony not essential to 
its validity as a marriage, but one which had important 
legal consequences. We may safely assume that there 
was originally no true marriage without the ceremony, 
but at the time of the Twelve Tables this was no longer 
the case. The ceremony created a relation which the 
Romans called Hand (manus), and brought the wife 
into her husband's power, putting her, so far as legal 
rights went, in the position of a daughter (filiae loco). 
It gave the husband all the property she had when she 
married. It entitled him to all she might acquire after- 
wards, whether by gift or by her own labour. It enabled 
him to command her labour, and even to sell her, though 
the sale neither extinguished the marriage nor made her 
a slave, but merely enabled the purchaser to make her 
work, while still requiring him to respect her personal 
rights 1 . In compensation for these disadvantages the 
wife became entitled to be supported by her husband, 
and to receive a "share of his property at his death, as 
one of the ' family heirs ' (sui hcrcdcs), whom he could 
disinherit only in a formal way. She had by coming 
under his Hand passed out of her original family, and 
lost all right by the strict civil law to share in the inheri- 
tance of her father. 

There were two forms of ceremony by which this 
power of the Hand could be created. One, probably 

1 Some writers doubt whether this power of sale existed, and refer to a supposed 
'law of Romulus' mentioned by Plutarch which devoted to the infernal gods who- 
ever sold his wife. But the balance seems to incline in favour of the existence of 
the power. 



788 MARRIAGE AND DIVORCE 

the older, had a religious character. It took place in 
the presence of the chief pontiff, and its main feature 
was a sacrifice to Jupiter, with the eating by the bride 
and bridegroom of a cake of a particular kind of corn 
(far), whence it was called confarrcatio. It was origi- 
nally confined to members of the patrician houses. The 
other was a purely civil act, and consisted in the sale 
by the bride of herself, with the approval of her father 
or her guardian (as the case might be), to the bride- 
groom, apparently accompanied (though there is a con- 
troversy on this point) by a contemporaneous sale by 
the bridegroom of himself to the bride. The trans- 
action was carried out with certain formal words and 
in the presence of five witnesses (being citizens) 1 , be- 
sides the man who held the scales with which the money 
constituting the price was supposed to be weighed. The 
price was of course nominal, though it had in very early 
times been real. 

These two forms have been frequently spoken of as 
if they were indispensable forms of marriage, so that 
marriage had always the Hand power as its consequence. 
But this, though it may probably have been the case 
in very early days, was not so in those historical times 
to which I must confine myself. And the proof of this 
may be found in the fact that if a woman was married 
without either of the above forms, she did not pass into 
the Hand of her husband unless or until she had lived 
with him for a year, and not even then if she had ab- 
sented herself from his house for three continuous nights 
during that year 2 . And where the Hand power had 
not been created, the property rights of the wife, what- 
ever they were 3 , remained unaffected by the marriage. 

1 There has been much dispute as to this ceremony : I give what seems the most 
probable view. It may descend from a more ancient sale of the wife by her rela- 
tives to the husband, similar to that which we find in some primitive peoples. 

2 This was in pursuance of the general rule that rights over a movable were ac- 
quired by a year's continuous holding : ' usus auctoritas fundi biennium, caeterarum 
rerum annuus esto.' 

3 If she was in the power (potestas) of her father, she had no property of her 
own. If she was sui zuris, she was under guardianship. 



MARRIAGE AND DIVORCE 789 

The period of three nights is fixed in the Twelve Tables, 
possibly as a precise definition of a custom previously 
more uncertain. 

This was the old Roman system, and a very singular 
system it was, because it placed side by side the extreme 
of marital control as the normal state of things and the 
complete absence of that control as a possible state of 
things. Doubtless the marriages with Hand were in 
early days practically universal, resting upon a sentiment 
and a social usage so strong that women themselves did 
not desire the free marriage, which would put them in 
an exceptional position, outside the legal family of the 
husband. Nor can we doubt that the wide power which 
the law gave to the husband was in point of fact re- 
strained within narrow limits, not only by affection, but 
also by the vigilant public opinion of a comparatively 
small community. 

IV. Change from the Earlier to the Later 
System at Rome. 

Before the close of the republican period the rite of 
confarrcatio practically died out, or was referred to as 
an old-world curiosity, much as a modern English lawyer 
might refer to the power of excommunication possessed 
by ecclesiastical authorities. The patrician houses had 
become comparatively few, and the daughters of those 
that remained evidently did not wish to come under the 
Hand power 1 . The form of coemptio, which all citizens 
might use, lasted longer, and seems to have been not 
infrequently applied in Cicero's time. Two centuries 
later it also was vanishing, and Gaius tells us that the 
rule under which uninterrupted residence created the 
husband's power of Hand, and might be stopped by 

1 Nevertheless it was retained in a few families for the purpose of providing per- 
sons who could hold four great priestly offices, since by ancient usage none save 
those born from a marriage with confarreation were able to serve these priesthoods. 
But its operation seems to have been restricted by a decree of the senate so as to 
apply only so far as religious rites were concerned {quoad sacra) (Gai Inst. i. 136). 



790 MARRIAGE AND DIVORCE 

the wife's three nights' absence, had completely disap- 
peared (Gai Inst. i. in). So we may say broadly that 
from the time of Julius Caesar onwards the marriage 
without Hand had become the rule, while from the time 
of Hadrian onwards the legal acts that had usually ac- 
companied marriage, which placed the wife under the 
husband's control, were almost obsolete. 

This was a remarkable change. The Roman wife in 
the time of the Punic Wars had, with rare exceptions, 
been absolutely subject to her husband. She passed out 
of her original family, losing her rights of inheritance in 
it. Her husband acquired all her property. He could 
control her actions. He sat as judge over her, if she 
was accused of any offence, although custom required 
that a sort of council of his and her relatives should be 
summoned to advise him and to see fair play. He could 
put her to death if found guilty. He could (apparently) 
sell her into a condition practically equivalent to slavery, 
and could surrender her to a plaintiff who sued him in 
respect of any civil wrong she had committed, thereby 
ridding himself of liability. One can hardly imagine a 
more absolute subjection to one person of another per- 
son who was nevertheless not only free but respected 
and influential, as we know that the wife in old Rome 
was. It would be difficult to understand how such a 
system worked did we not know that manners and pub- 
lic opinion restrain the exercise of legal rights. 

Such was the old practice. Under the new one, uni- 
versal in the time of Domitian and Trajan, which is also 
the time of Tacitus, Juvenal and Martial, the Roman 
wife was absolutely independent of her husband, just 
as if she had remained unmarried. He had little or 
no legal power of constraint over her actions. Her 
property, that which came to her by gift or bequest 
as well as that which she earned, remained her own 
to all intents and for all purposes. She did not enter 
her husband's family, and acquired only a very limited 
right of intestate succession to his property. 



MARRIAGE AND DIVORCE 791 

This striking contrast may be explained by the fact 
that the disabilities which attached to the wife under 
the old system were not in legal strictness the conse- 
quence of marriage itself, but of legal acts which an 
almost universal sentiment and custom had attached 
to marriage, though in themselves acts distinct from 
it. A perfectly valid marriage could exist without these 
legal acts, and so far back as our authorities carry us, 
we find that a few, though probably originally only a 
very few, marriages did take place without them. Ac- 
cordingly when sentiment changed, and custom no 
longer prescribed the use of confarreation or coemp- 
tion, the power of Hand vanished of itself and vanished 
utterly. Had it been an essential part of the marriage 
ceremony, it would doubtless have been by degrees 
weakened in force and accommodated to the ideas of 
a new society. But no legislation was needed to emanci- 
pate the wife. The mere omission to apply one or other 
of the old concomitants gave the marriage relation all 
the freedom the parties could desire and perhaps more 
than was expedient for them. 

We may now dismiss these ancient forms and address 
ourselves to the position of the wife under the normal 
marriage of later times — the so-called ' free marriage, 7 
since this is the form in which the Roman institution 
descended to and has affected modern law 1 . 

V. Later Marriage Law: Personal Relation 
of the Consorts. 

The following points deserve to be noted as charac- 
terizing the Roman view. 

The act whereby marriage was contracted was a 

1 I pass by the distinction between iustae nufitiae, which could be contracted 
only between Roman citizens, and the so-called 'natural' marriage, or matri- 
inonium iuris gentium, which was created by the marriage of a full citizen to a 
half citizen or an alien {peregrimis), because the latter is of no consequence for our 
purpose, and practically disappeared when all Roman subjects became citizens. It 
was a perfectly valid marriage, and the children were legitimate. As to their 
status, see Gai Inst. i. 78, 79. 



792 MARRIAGE AND DIVORCE 

purely private act. No intervention of any State offi- 
cial, no registration or other public record of any sort 
was required. The two parties, and the two parties only, 
were deemed to be concerned 1 . 

The act was a purely civil act, to which no religious 
or ecclesiastical rite was essential either in heathen or 
in Christian times. There were indeed what may be 
called decorative ceremonies, some of which we find 
mentioned in poems like the famous Epithalamium of 
Catullus, but they had no more to do with the legal 
nature and effect of the matter than has the throwing 
of old shoes or rice at a modern English wedding. 

The act required no prescribed form. It consisted 
solely in the reciprocally expressed consent of the 
parties, which might be given in any words, or be 
subsequently presumed from facts. ' Marriage is con- 
tracted by consent only ' (nuptiae solo consensu contra- 
huntnr) is the invariable Roman maxim. Even the con- 
ducting of the bride to the bridegroom's house, which 
has sometimes been represented as necessary 2 , seems 
to have been regarded rather as evidence needed in 
certain cases than as essential to the validity of the act 3 . 
A generally prevalent usage made a formal betrothal 
(sponsalia) precede the actual wedding. But the be- 
trothal promise created no legal right. No action lay 
upon it, such as that which English and Anglo-Ameri- 
can law unfortunately allows to be brought for breach 

1 Where either party was subject to the paternal power of his or her father (or 
grandfather), the consent of the father (or grandfather) (or both) was required, 
though in a few specified cases it might be either dispensed with or compelled. 
This was a consequence of the Roman family system. It was irrespective of the 
age of bride or bridegroom. 

2 The Emperor Majorian (a.d. 455-461) is said to have issued a constitution for 
the Western Empire, making the creation of a dos essential to the validity of a mar- 
riage ; but this provision, which can hardly have been intended to be general, 
seems to have never taken effect. The Western Empire was then in the throes of 
dissolution. 

3 See Paul., Sent. Recept. xix. 8 ; Dig. xxii. 2. 5. The suggestion which maybe 
found in some modern writers that Marriage fell within the class of the contracts 
created by the delivery of an object (the so-called Real Contracts), has no Roman 
authority in its favour, and is indeed based on a misconception of the nature of 
those four contracts, in all of which the obligation created is for the restoring of 
the object delivered. Marriage is assuredly not a bailment. 



MARRIAGE AND DIVORCE 793 

of promise of marriage. In early times formal and bind- 
ing stipulations seem to have been often made on each 
side between the bridegroom and the father (or other 
male relative) of the bride for the giving and receiv- 
ing of the bride; and if the promise were broken without 
sufficient cause, an action lay against the party in fault 
for the worth of the marriage 1 . This, however, dis- 
appeared. Under the influence of a more refined senti- 
ment, not only could no promise of marriage be en- 
forced, but if the parties made a contract whereby each 
bound him or herself to the other in a penal sum to 
become payable in case of breach, such a provision was 
held to be disgraceful (pactum turpe) as well as invalid. 
This was the law of later republican and imperial times. 
Betrothal had, however, some legal effects. It entitled 
either of the betrothed parties to bring an action for an 
injury (of an insulting nature) offered to the other. It 
rendered any one infamous who being betrothed to one 
person contracted betrothal to another. It entitled 
either party, if the espousal was broken off before mar- 
riage, to reclaim whatever gifts he or she might have 
bestowed upon the other. 

As regards personal status, the wife acquired that of 
her husband (unless either had been formerly a slave), 
and his domicil became hers. In the old days of Hand 
power she had taken the name of his gens, but now 
she retained her own, besides her personal ' first name ' 
(praenomen) (e.g. Tertia) 2 . Each spouse being interested 
in the character and reputation of the other, he could 
sue for damages if any insult was offered to her, she 
for insult to him. He is bound to support her in a 
manner suitable to their rank, whatever her private 
means may be. Though each can bring an action against 

1 This was at any rate a usage among the Latins ; but how far in Rome seems 
doubtful. 

2 Under the Empire we usually find women using two names, from their father's 
gens and family (e.g. Caecilia Metella). Sometimes, it would seem, the name of 
the father's gens was followed by one taken from the mother (e.g. Iunia Lepida, 
Annaea Faustina). The subject is fully discussed by Mommsen, in his Riimisches 
Staatsrecht. 



794 MARRIAGE AND DIVORCE 

the other, the action must not be one which affects 
personal credit and honour (actio infamans), and hence, 
though each has his and her own property, neither can 
proceed against the other by a civil action of theft, even 
if the property seized was seized in contemplation of a 
divorce 1 . It need hardly be added that if the wife's 
father, or grandfather, were living, she would remain, 
unless she had been emancipated, subject to the paternal 
power, being for all legal purposes a member of her 
original family and not of her husband's. But the per- 
son in whose power she is cannot (at least in imperial 
days) take her away from her husband. Antoninus Pius 
forbade a happy marriage to be disturbed by a father; 
and in the third century (perhaps earlier) the husband 
could proceed by way of interdict to compel a father 
to restore his wife to him 2 . 

VI. Later Law. Pecuniary Relations of the 

Consorts. 

This curiously detached position of the two consorts 
expressed itself in their pecuniary relations. Each had 
complete disposal of his or her property by will as well 
as during life, though the wife needed, down to a com- 
paratively late time, the authority of her guardian 3 . 
Neither had originally any right of succession to the 
other in case of intestacy, nor had the wife any right of 
intestate succession to her children nor they to her, ex- 
cept that which the Praetor gave them among the blood 
relatives (cognati) generally, after the agnates (persons 
related through males). A state of things so inconsistent 
with natural feeling could not however always continue, 

1 A special action (rerum amotaruvi) was given in this case. Some jurists held 
that the joint enjoyment of household goods made the conception of Theft inappli- 
cable to a wife's dealings, however unauthorized, with her husband's property. 
Dig. xxv. 2. i. 

2 Dig. xliii. 30. 2. 

3 The guardianship of women of full age seems to have died out after women 
received power to select a guardian for themselves, a change which of course made 
his action purely formal. 



MARRIAGE AND DIVORCE 795 

so the Praetor created a rule of practice whereby each 
consort had a reciprocal right of succession to the other. 
But even in doing- so, he placed this succession after that 
of other blood relations, as far as the children of second 
cousins. This postponement of a consort to blood rela- 
tives was carried even further by Justinian's legislation, 
for that emperor extended the category of relatives who 
could succeed in case of intestacy, and made no pro- 
vision for the wife (beyond that which the Praetor had 
made), except to some small degree in case of a neces- 
sitous widow. The relationship of mother and child re- 
ceived a somewhat fuller recognition, for laws {Senatus 
Consultum Tcrtullianum, Sc. Orphitianuni) of the time 
of Hadrian and Marcus Aurelius gave the mother and 
the children reciprocal rights of inheritance 1 , which, 
finding a place in the general scheme of succession 
based on consanguinity which Justinian established, 
have passed into modern law. 

Distinct as were the personalities of the two consorts 
in respect of property, the practical needs of a joint 
life recommended some' plan under which a provision 
might be made for the expenses of a joint household. 
This sprang up as soon as marriages without the con- 
comitant creation of the Hand power had grown com- 
mon. It became usual for the wife to bring with her 
land or goods, either her own, if she were independent, 
or bestowed by her father or other relative. This pro- 
perty, which was destined for the support of the married 
pair and their children, was called the Dos, a term which, 
since it denotes the wife's contribution to the matri- 
monial fund, must not be translated by our English word 
Dower, for that term describes the right of a wife who 
survives her husband to have a share in his landed es- 
tate. Many rules sprang up regarding the Dos, rules 
probably due in the first instance to custom, for as the 
instruments of marriage contracts were usually drawn 

1 The mother's succession was originally granted only where she had borne three 
children (if a freed-woman, four). 



796 MARRIAGE AND DIVORCE 

on pretty uniform lines, these lines ultimately became 
settled law 1 . The general principle came to be that 
property given from the wife's side, whether by her 
father, or by herself, or by some of her relatives, became 
subject to the husband's right of user while the mar- 
riage lasted, as enabling him to fulfil his obligation to 
support wife and children, but at the expiry of the 
marriage by the death (natural or civil) of either party, 
or by divorce, reverted to the wife or her heirs 2 . If, 
however, the property had been given by the wife's 
father, he might, if still living, reclaim it 3 . The Dos is 
said by the Romans to be given for the purpose of sup- 
porting the burden of married housekeeping, and there- 
fore the administration and usufruct of it pertain to the 
husband, while the ultimate ownership remains in the 
wife, or in the father who constituted it, as the case 
may be. In the later imperial period a sort of second 
form of matrimonial property was introduced, called the 
gift for the sake of marriage (donatio propter nuptias). 
It was made by the husband, and remained his property 
both during and after the marriage. So far, as it was 
only theoretically separated from other parts of the 
husband's estate, it might seem to have no importance. 
But if he became insolvent, it did not, like the rest of 
his property, pass to his creditors, but went over to the 
wife, just as the Dos, although administered by the hus- 
band, remained unaffected by his insolvency. And just 
as the husband was entitled, where a divorce was caused 
by the wife's fault, to retain a part of the Dos, so if a 
divorce was caused by the husband's fault, the donatio 
propter nuptias, or a part of it, might be claimed by the 

1 The 'custom of conveyancers' has worked itself into English law in a some- 
what similar way. 

2 This was the rule as settled by Justinian. Before his time, the husband took 
the Dos at the wife's death unless it had been given by her father. 

1 There are many less important rules regarding the extent of the husband's 
interest and the form in which the property is to be restored at the end of the mar- 
riage, which it is not necessary to set forth, as they do not affect the general prin- 
ciple. Indeed generally through these pages I am forced, for the sake of clearness 
and brevity, to omit a number of minor provisions.] 



MARRIAGE AND DIVORCE 797 

injured wife. The similarity of some of these arrange- 
ments to the practice of English marriage settlements 
will occur to every one's mind, though in England settle- 
ments are always created and governed by the provisions 
of the deeds which create them, whereas in Rome, al- 
though special provisions were frequently resorted to, 
there arose a general legal doctrine whose provisions 
were applicable to gifts made upon or in contemplation 
of marriage. 

One further point needs to be mentioned. It was 
a very old customary (or, as we should say, common 
law) rule of Roman law that neither of the wedded 
pair could during the marriage bestow gifts upon the 
other, the reason assigned being the risk that one or 
other might by the exercise of the influence arising 
from their relation be deprived of his or her property 
to his or her permanent damage (ne mutuato amove in- 
viccm spoliarcntur). (This principle, which protects the 
wife from being either wheedled or bullied out of her 
separate property, and may be compared with the Eng- 
lish restraint on alienation or anticipation applied to a 
wife's settled property, was also held to be occasionally 
needed to protect the husband's interests, and those of 
the children, from suffering at the hands of a grasping 
wife.': It issues from the view which the Roman jurists 
enounce that affection must not be abused so as to ob- 
tain pecuniary gain; and one jurist adds that if either 
party were permitted to make gifts the omission to make 
them might lead to the dissolution of the marriage, and 
so the continuance of marriages would be purchasable Jil 
Such gifts were accordingly held null and void, the only 
exception being that where property actually given had 
been left in the donee's hands until the donor's death, 
the heir of the donor could not reclaim it from the sur- 

1 ' Sextus Caecilius et illam causam adiciebat, quia saepe futurum esset ut dis- 
cuterentur matrimonia si non donaret is qui posset atque ea ratione eventurum ut 
venalicia essent matrimonia.' This viewwas sanctioned by the Emperor Caracalla 
in his speech to the senate, which introduced the exception next mentioned in the 
text ; Dig. xxiv. i. 2. 



798 MARRIAGE AND DIVORCE 

viving donee. Needless to say that the rule only covered 
serious transfers of property, and did not apply to gifts 
of dress or ornaments or such other tokens of affection 
as may from time to time pass between happy consorts. 

VII. General Character of the Roman Conception 
of Marriage. 

Reviewing the rules which regulated marriage with- 
out the Hand Power, the sole marriage of the classical 
times of Roman law, we are struck by three things. 

The conception of the marriage relation is an alto- 
gether high and worthy one. A great jurist defines it 
as a partnership in the whole of life, a sharing of rights 
both sacred and secular 1 . The wife is the husband's 
equal 2 . She has full control of her daily life and her 
property. She is not shut up, like the Greek wife, espe- 
cially among the Ionians, in a sort of Oriental seclusion, 
but moves freely about the city, not only mistress of 
her home, but also claiming and receiving public re- 
spect, though so far placed on a different footing from 
men, and judged by a standard more rigid than ours, 
that it was deemed unbecoming for her to dance and 
shocking for her to drink wine. 

The marriage relation is deemed to be wholly a mat- 
ter of private concern with which neither the State nor 
(in Christian times) the Church has to concern itself. 
This was so far modified under the Emperors, that the 
State, from the time of Augustus, began to try to dis- 
courage celibacy and childlessness in the interests of the 
maintenance of an upper class Roman population, as 
opposed to one recruited from freed men and strangers. 
But these efforts were not, as we shall see, incompatible 
with adherence to the general principle that the forma- 
tion and dissolution of the tie required no State inter- 

1 ' Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et 
humani iuris communicatio ;' Modestinus in Dig. xxiii. 2. 1. 

2 This was expressed in the phrase which the bride anciently used when brought 
to the husband's house : ' Ubi tu Gaius, ego Gaia.' 



MARRIAGE AND DIVORCE 799 

vention, nor even any form prescribed by State autho- 
rity. 

The marriage relation rests entirely on the free will 
of the two parties 1 . If either having promised to enter 
it refuses to do so, no liability is incurred. If either 
desires to quit it, he or she can do so. Within it, each 
retains his or her absolute freedom of action, absolute 
disposal of his or her property. 

Compulsion in any form or guise is utterly opposed 
to a connexion which springs from free choice and is 
sustained by affection only. 

These principles have a special interest as being the 
latest word of ancient civilization before Christianity 
began to influence legislation. They have in them much 
that is elevated, much that is attractive. They embody 
the doctrines which, after an interval of many centuries, 
have again begun to be preached with the fervour of 
conviction to the modern world, especially in England 
and the United States, by' many zealous friends of pro- 
gress, and especially by those who think that the great- 
est step towards progress is to be found in what is called 
the emancipation of woman. 

VIII. Divorce in Roman Law. 

Let us now see how the Roman principles aforesaid 
worked out in practice as regards domestic morality 
and the structure of society, that structure depending 
for its health and its strength upon the purity of home 
life at least as much as it does upon any other factor. 

The last of the above-stated three principles is the 
derivation of all the attributes of the marriage relation 
from the uncontrolled free will of the parties. This 
principle is applied to the continuance of the relation 
itself. With us moderns the tie is a permanent tie, 
which, though freely formed, cannot be freely dissolved, 

1 ' Libera matrimonia esse antiquitus placuit,' says the Emperor Severus Alex- 
ander in the third century. Cod. viii. 38. a. 



800 MARRIAGE AND DIVORCE 

whether by one of the parties or by both. Very dif- 
ferent was the Roman view. To them it is even less 
binding than an ordinary business contract. Take for 
instance a bargain made between A and B for the sale 
and purchase of a house. Such a bargain creates what 
the Romans call an obligation, a bond of law {vinculum 
iuris) which enables either of the contracting parties to 
require the other to fulfil his promise, or to pay damages 
in case of default. In Roman law the act of entering 
into marriage creates no such bond. The business con- 
tract can be rescinded only by the consent of both the 
parties to it. The marriage relation can be terminated 
by the will of one only. Each party in forming it pro- 
mised only that he, or she, would remain united to the 
other so long as he, or she, desired so to remain united. 
This is the logical consequence of the principle that mar- 
riages should be free; this was how the Romans under- 
stood that principle. 

Accordingly divorce can be effected by either party 
at his or her pleasure, the doctrine of equality between 
the sexes being impartially applied, so that the wife may 
just as freely and easily divorce her husband as the 
husband may divorce his wife. 

The early history of tne matter is somewhat obscure, 
and need not detain us. It would seem probable that 
in the old days when marriage was accompanied by the 
Hand power, a husband might put away his wife if 
she had been convicted before the domestic council of 
certain grave offences x ; and we gather that in such 
cases she was entitled to demand her emancipation, i.e. 
the extinction of the Hand power, by the proper legal 
method thereto appointed. Such cases were, however, 
extremely rare. When marriage unaccompanied by 
Hand power became frequent, we do not at first hear 
of any divorces. Our authorities declare that the first 

1 A so-called 'law of Romulus' is said to have enumerated poisoning the chil' 
dren, adultery, and the use of false keys as grounds justifying the husband in di- 
vorcing his wife, no parallel right being granted to her. And there seems to have 
been a provision regarding divorce in the Twelve Tables. 



MARRIAGE AND DIVORCE 801 

instance of divorce at Rome (they probably mean the 
first where no crime was alleged) was furnished by a 
certain Spurius Carvilius Ruga, who in B.C. 231 got 
rid of his wife, although warmly attached to her, on 
account of her sterility. Universal displeasure fell upon 
him for his conduct: and when L. Antonius put away 
his wife without summoning a council of friends and 
laying the matter before them, the Censors removed 
him from his tribe. But before long other husbands 
were found to imitate Spurius Carvilius. In the second 
century b.c. divorce was no longer rare. In the days of 
Julius Caesar it had become common, and continued 
to be so for many generations. The fragrance of re- 
ligious sentiment had ceased to hallow marriage, and 
in the general decline of morals and manners it was one 
of the first institutions to suffer degradation. Not only 
Cn. Pompey, but such austere moralists as Cato the 
younger and the philosophic Cicero put away their 
wives: Cato his after thirty years of wedded life, Cicero 
two in rapid succession. 

How far this decline had gone, even before the days 
of Cato and Cicero, appears from the singular speech 
delivered by Q. Caecilius Metellus, Censor in b.c. 131, 
in which he recommended a law for compelling every- 
body to marry, observing that if it were possible to 
have no wives at all, everybody would gladly escape 
that annoyance, but since nature had so ordained that 
it was not possible to live agreeably with them, nor to 
live at all without them, regard must be had rather to 
permanent welfare than to transitory pleasure 1 . We 
are told that both men and women, especially rich 
women, were constantly changing their consorts, on 
the most frivolous pretexts, or perhaps not caring to 

1 ' Si sine uxore, Quirites, possemus esse, omnes ea molestia careremus, sed quo- 
niam ita natura tradidit ut neque cum illis commode nee sine illis ullo modo vivi 
possit, saluti perpetuae potius quam brevi voluptati consulendum.' Aul. Gell. Nod. 
Att. i. 6 : cf. Liv. Epit. Book lix, and Sueton. Vit. Aug. Augustus, according to 
Gellius and Suetonius, caused this speech, delivered a century before, to be read 
aloud in the Senate in support of his bill De Maritandis Ordinibus, as being one 
which might fitly have been made for their own times. 

51 



802 MARRIAGE AND DIVORCE 

allege any pretext beyond their own caprice. Nothing 
more than a declaration of the will of the divorcing 
party was needed: and this was usually given by the 
husband in the set form of words, ' keep thy property 
to thyself ' (tuas res tibi habeto). Little or no social 
stigma seems to have attached to the divorcing partner, 
even to the wife, for public opinion, in older days a, rigid 
guardian of hearth and home, had now, in a rich, luxuri- 
ous, and corrupt society, a society which treated amuse- 
ment as the main business of life, come to be callously 
tolerant. There were still pure and happy marriages, 
like that of Cn. Julius Agricola (the conqueror of 
Britain) and Flavia Domitilla; nor is it necessary to 
suppose that conjugal infidelity was the chief cause why 
unions were so lightly contracted and dissolved, for the 
mere whims of self-indulgent sybarites account for a 
great deal 1 . Still the main facts — the prevalence of 
divorce, the absence of social penalties, and the general 
profligacy of the wealthier classes — admit of no doubt. 

The Emperor Augustus, though by no means himself 
a pattern of morality, was so much alarmed at a laxity 
of manners which threatened the well-being of the com- 
munity, as to try to restrict divorces by requiring the 
party desiring to separate to declare his or her intent 
in the presence of seven witnesses, being all full Roman 
citizens. This rule, enacted by the lex Iulia de adulteriis, 
and continued down till Justinian's time, does not seem 
to have reduced the frequency of divorces, though it 
would tend to render the fact more certain in each case 
by providing indubitable evidence. Martial and Juvenal 
present a highly coloured yet perhaps not greatly ex- 
aggerated picture of the license of their time; and Seneca 
truly observes that when vice has become embodied in 
manners, remedies avail nothing {Desinit esse remedto 
locus ubi quae fuerant vitia mores sunt). 

1 ' Aut minus aut certe non plus tricesima lux est 

Et nubit decimoiam Thelesina viro.' Mart. vi. 7. 



MARRIAGE AND DIVORCE 803 

IX. Influence of Christianity on the Roman 
Divorce Law. 

But a force had come into existence which was to 
prove itself far more powerful than the legislation of 
Augustus and his successors. The last thing that these 
monarchs looked for was a reformation emanating from 
a sect which they were persecuting, and from doctrines 
which their philosophers regarded with contempt. 
Christianity from the first recognized the sanctity of 
marriage, and when it became dominant (though for a 
long time by no means omnipotent) in the empire a new 
era began. The heathen emperors might probably have 
been glad to check the power of capriciously terminat- 
ing a marriage, but public opinion, which clung to the 
principle of freedom, would have been too strong for 
them. All they did was to impose pecuniary penalties 
on the culpable party by entitling the husband to retain 
one-sixth of the Dos in case of the wife's infidelity, one- 
eighth if her faults had been slighter, to which, if there 
were children, one-sixth was added in respect of each 
child, but so as not to exceed one-half in all. (The 
custody of the children belonged to the father in respect 
of his paternal power.) If the husband was the guilty 
party, he was obliged to restore the Dos at once, instead 
of being allowed a year's grace. 

Constantine and his successors had a somewhat easier 
task, because the Church had during several generations 
given to marriage a religious character, surrounded its 
celebration with many rites, and pronounced her bene- 
diction upon those who entered into it. A new sentiment, 
which looked on it as a union permanent because hal- 
lowed was growing up, and must have to some extent 
affected even heathen society, which remained for a 
century after Constantine both large and influential. 
Nevertheless, even the Christian emperors did not ven- 
ture to forbid divorce. They heightened the pecuniary 
penalties on the party to blame for a separation by pro- 



804 MARRIAGE AND DIVORCE 

viding that where the misconduct of the wife gave the 
husband good grounds for divorcing her, she should 
lose the whole of the Dos, and where it was the husband's 
transgressions that justified the wife in leaving him, he 
should forfeit to her the property he had settled, the 
donatio propter nuptias. In both these cases the ultimate 
ownership of these two pieces of marriage property was 
reserved to the children, if any, the husband or wife, as 
the case might be, taking the usufruct or life interest. 
If there was no Dos or Donatio, then the culpable party 
forfeited to the innocent one a fourth part of his or her 
private property. The definition of misconduct included 
a frivolous divorce, so that capricious dissolutions were 
in this way discouraged. 

If there were no fault on either side, but one or other 
partner desired to put an end to the marriage for the 
sake of entering a convent, or because the husband had 
been for five years in foreign captivity 1 , or because 
there had never been any prospect of offspring, such a 
divorce was allowed, and carried no pecuniary penalty 
with it. It was called divortium bona gratia. 

Finally, if both the parties agreed of their own free 
wills to separate — the divortium communi consensu — they 
might do so without assigning any cause or incurring 
any liability. This rule, which prevailed from first to 
last, and is recognized even in the Digest and Code of 
Justinian, was only once broken in upon. In an ordi- 
nance issued by Justinian in his later years (Novella 
Constitutio exxxiv) the pious austerity of the reformer 
broke out so vehemently as to enact that where hus- 
band and wife agreed to divorce one another without 
sufficient ground, both should be incapable of remar- 
riage and be immured for life in a convent, two-thirds 
of their property going to their children. Even then, 
however, the emperor did not venture to pronounce 
the divorce legally invalid. The will of the parties pre- 

1 The older doctrine had been that foreign captivity destroyed marriage ipso 
facto. 



MARRIAGE AND DIVORCE 805 

vails, and they die unmarried, though they die in prison. 
This violation of the established doctrine was, however, 
too gross to stand. It excited general displeasure, and 
was repealed by Justin the Second, the nephew and suc- 
cessor of Justinian. So the divorce by consent lasted 
for some centuries longer, till in an age which had for- 
gotten the ancient Roman ideas and was pervaded by 
the conception of the marriage relation which religion 
had instilled, the Emperor Leo the Philosopher declared 
this form of separation to be invalid. 

Through the whole of this legislation on the subject 
of divorce, which is far more minute and intricate than 
the briefness of the outline here presented can convey, 
it is to be noted that the Romans held fast to two prin- 
ciples. One was the wholly private, the other the wholly 
secular, character of wedlock. There is no legal method 
prescribed for entering into a marriage, nor any public 
record kept of marriages. There is no suit for divorce, 
no public registration of divorce. The State is not in- 
voked in any way. Neither is the Church. Powerful 
as she had grown before Justinian's time, even that 
sovereign does not think of requiring her sanction to the 
extinction of the marriage which in most cases she had 
blessed. Either party has an absolute right to shake 
off the bond which has become a fetter. He or she may 
suffer pecuniarily by doing so, but the act itself is valid, 
valid against an innocent no less than against a guilty 
partner, and valid to the extent of permitting remar- 
riage, except (as observed in the last paragraph) for a 
few years at the end of Justinian's reign. 

Religion had consecrated the patrician marriage with 
the sacred cake in early days, and there had been a 
public character in the so-called plebeian marriage with 
the scales and five witnesses. But the marriage of the 
Christian Empire was (so far as law went) absolutely 
secular and absolutely private. 



806 MARRIAGE AND DIVORCE 

X. Some other Features of Roman Marriage 

Law. 

Before leaving this part of the subject, a few minor 
curiosities of the Roman marriage law deserve to be 
mentioned. From the time of Augustus there were in 
force, during some centuries, various provisions x de- 
signed to promote marriage and the bearing of children 
by attaching certain burdens or disabilities to the un- 
married and childless. Most of these, being opposed 
to the new sentiment which Christianity fostered, were 
swept away by the Emperor Constantine and his suc- 
cessors. Others fell into desuetude, so that before Jus- 
tinian's time few and slight traces were left of statutes 
that had exerted a great influence in earlier days, though 
it may be doubted whether they did much to promote 
morality. The tendency of Christian teaching rather 
was in favour of celibacy, when adhered to from ascetic 
motives; and the passion for a monastic life which 
marked the end of the fourth century told powerfully 
in this direction, especially in the eastern half of the 
empire. t 

Similar sentiments worked to discourage second mar- 
riages, which earlier legislation had favoured, though 
the widow who remarried within the year of mourning 
(originally of ten, ultimately of twelve months) suffered 
infamy, by a very ancient custom, as did the person who 
wedded her. The marriage was, however, valid. The 
Christian emperors punished the consort who married 
again by debarring him or her from the full ownership 
of any property which came to him or her through the 
first marriage {lucra nuptialia), while leaving him (or her) 
the usufruct in it. But this applied only where there 
were children of the first marriage living, and was 
mainly prompted by a desire to protect their interests 
against a step-parent. The ancient world was singularly 
suspicious of step-mothers. 

1 Especially those contained in the lex lulia et Papia Poppaea. 



MARRIAGE AND DIVORCE 807 

The rules with regard to prohibited degrees of matri- 
mony varied widely from age to age. In early Rome 
even second cousins were forbidden to intermarry. 
There was in those days a usage permitting near rela- 
tives, as far as second cousins, to kiss one another with- 
out incurring censure (ias osculi). Plutarch oddly ex- 
plains the permission as grounded upon the right of the 
male relatives to satisfy themselves in this way that the 
ladies of the family had not tasted wine. But obviously 
the wholesome habits of a simple society allowed a fa- 
miliar intercourse among kinsfolk just as far, and no 
farther, as the prohibition of marriage between them 
extended 1 . Towards the end of the republican period, 
however, we find that even first cousins might marry, 
probably by custom, for we hear of no specific enact- 
ments. Tacitus (Ann. xii. 6) refers to the practice as well 
established. This freedom lasted till the Emperor Theo- 
dosius the First, who forbade their marriage under pain 
of death by burning. Though the penalty was subse- 
quently, reduced, marriages of first cousins continued 
to be forbidden and punishable in the western half of 
the empire, while in the eastern they were made per- 
missible, and remain so in the system of Justinian. The 
marriage of uncle or aunt with niece or nephew had 
been prohibited, though apparently by no statute, until 
the Emperor Claudius, desiring to marry his brother's 
daughter Agrippina, obtained a decree of the Senate 
declaring such a marriage legal 2 . So it remained for 
a time, though the marriage of an uncle with a sister's 
daughter, or of an aunt with a nephew, was still deemed 
incestuous. Christianity brought a change, and the law 
of Claudius was annulled by the sons of the Emperor 
Constantine. It was also by these sovereigns that mar- 
riage with a deceased wife's sister, or a deceased hus- 

1 It is a curious instance of the variance of custom in this respect, that after it 
had in England become unusual for cousins of different sexes to kiss one another, 
the practice remained common in the simpler society of Scotland and still more in 
that of Ireland. 

2 Tac. Ann. xii. 5-7. 



808 MARRIAGE AND DIVORCE 

band's brother, which had previously been lawful, though 
apparently regarded with social disapproval, was ex- 
pressly forbidden 1 . This rule was adopted by Justinian, 
in whose Codex it finds a place 2 . 

Besides the full lawful marriage of Roman citizens, 
to which alone the previous remarks have referred, there 
were two other recognized relations of the sexes under 
the Roman law 3 . One of these was the marriage of a 
citizen, whether male or female, with a non-citizen, i.e. 
a person who did not enjoy that part of citizenship 
which covered family rights and was called connubium. 
This was called a natural marriage {matrimonium natu- 
rale, matrimonium iuris gentium) as existing under the 
Law of Nature or Law of the Nations (ius gentium), 
as contradistinguished from the peculiar law of Rome 
{ius civile) 4 . It was a perfectly legal union, and the 
children were legitimate: as of course were the children 
of two non-citizens who married according to their own 
law. When Roman citizenship became extended to all 
the subjects of the empire, the importance of this kind 
of marriage vanished, for it could thereafter have been 
applicable (with some few exceptions) only to persons 
outside the Empire, and marriages with such persons, 
who were prima facie enemies, were forbidden. 

The other relation was that called concubinage (con- 
cubinatus). It was something to which we have no pre- 
cise analogue in modern law, for, so far from being 
prohibited by the law, it was regulated thereby, being 
treated as a lawful connexion. It is almost a sort of 
unequal marriage (and is practically so described by 
some of the jurists) existing between persons of different 
station — the man of superior rank, the woman of a rank 

1 Many other prohibitions of marriages applying to persons holding official rela- 
tions, or to persons of widely different rank, or to cases where adoptive relation- 
ships come in, need not be mentioned, as they have no longer any great interest. 

2 Cod. Theod. iii. 12, 2 sqq. ; Cod. Iustin. v. 5. 5 and 8. 

3 The connexion of two slaves, called contubernium, was not deemed a legal 
relation at all, and children born from it were not legitimate. So also a free per- 
son could not legally intermarry with a slave. 

* See Essay XI, p. 570. 



MARRIAGE AND DIVORCE 809 

so much inferior that it is not to be presumed that his 
union with her was intended to be a marriage. It leaves 
the woman in the same station in which it found her, 
not raising her, as marriage normally does, to the hus- 
band's level. The children born in such a union are 
not legitimate ; but they may require their father to sup- 
port them, and are even allowed by Justinian, in one 
of his later enactments (Novella lxxxix), a qualified right 
of intestate succession to him. They of course follow 
their mother's condition, and they have a right of in- 
heriting her property. Even here the monogamic prin- 
ciple holds good. A man who is married cannot have a 
concubine, nor can any man have more than one concu- 
bine at a time. Though regarded with less indulgence 
by the Christian emperors than it had been by their 
predecessors, it held its ground in the Eastern Empire, 
even under Justinian, who calls it a ' permitted con- 
nexion ' (licita consuctudd), and was not abolished till 
long after his time by the Emperor Leo the Philosopher 
in a.d. 887. In the West it became by degrees dis- 
credited, yet doubtless had some influence on the prac- 
tice of the clergy, the less strict of whom continued to 
maintain irregular matrimonial relations for a great 
while after celibacy had begun to be enforced by ecclesi- 
astical authority. 

Children born in concubinage may be legitimated by 
the subsequent marriage of their parents, according to 
a rule first introduced by Constantine, and subsequently 
enlarged and made permanent by Justinian (Cod. v. 27, 
5 and 6; Nov. xii. 4; Nov. lxxxix. 8); a rule of great 
importance, which was long afterwards introduced into 
the Canon Law by Pope Alexander III in a.d. 1160, 
and has held its ground in the modern Roman law of 
continental Europe, as it does in the law of Scotland 
to this day. The bishops, prompted by the canonists, 
tried to introduce it in England, but were defeated by 
the opposition of the barons, who at the great council 
keld at Merton in 20 Henry III (a.d. 1235-6) refused 



810 MARRIAGE AND DIVORCE 

their consent in the famous words, ' We will not change 
the laws of England which hitherto have been used and 
approved 1 .' Nevertheless such power of legitimating 
the children of a couple born before their legal marriage 
seems to have been part of the ancient customs of Eng- 
land before the Conquest. The children were at the 
wedding placed under a cloak which was spread over 
the parents, and were from this called in Germany, 
France, and Normandy, ' mantle children V 

I have already dwelt upon the most striking feature 
of the branch of legal history we have been tracing, the 
comparatively sudden passage from a system of extreme 
strictness — under which the wife's personality, with her 
whole right of property, became absolutely merged in 
that of her husband — to a system in which the two per- 
sonalities remained quite distinct, united only by the 
rights which each had in matrimonial property, rights 
which were however not rights of joint-management, 
but exercisable (subject to limitations) by the husband 
alone so long as the marriage lasted, while the reversion 
was secured to the wife or her relatives. It is hardly 
less noteworthy that these two contrasted systems did 
for a considerable time exist side by side; and for a cen- 
tury, or perhaps more, must both have been in full 
vigour, though the freer system was obviously gaining 
ground upon the older and more stringent one. 

Another fact, though more easily explicable, is also 
worth noting. In its earlier stages the Roman marriage 
bore a religious character, for we can hardly doubt that 
in primitive times Confarreation, the old patrician form 
with the sacrifice and the holy cake, was practically 

1 ' Ad breve Regis de bastardia utrum aliquis natus ante matrimonium habere 
poterit hereditatem sicut ille qui natus est post. Responderunt omnes Episcopi 
quod nolunt nee possunt ad istud respondere, quia hoc esset contra communem 
formam Ecclesie. Ac rogaverunt omnes Episcopi Magnates ut consentirent quod 
nati ante matrimonium essent legitimi sicut illi qui nati sunt post matrimonium 
quantum ad successionem hereditariam quia Ecclesia tales habet pro legitimis ; et 
omnes comites et barones una voce responderunt quod nolunt leges Anglie mutare 
que usitatate sunt et approbate.' 20 Henr. Ill, Stat. Mert. 

2 Pollock and Maitland, vol. ii. p. 397. I have heard of the cloak custom as ex- 
isting in Scotland down almost to our own time. 



MARRIAGE AND DIVORCE 811 

universal among the original citizens, before the plebs 
came into a separate and legally recognized existence. 
Hence perhaps it is that marriage is described, even 
when that description had ceased to have the old mean- 
ing, as a ' sharing of all rights, both religious and secu- 
lar.' In its middle period, which covers some five cen- 
turies, it was a purely civil relation, not affected, in its 
legal aspects, by any rules attributable to a theological 
or superstitious source. But when Christianity became 
the dominant faith of the Empire, the view which the 
Gospel and the usages as well as the teaching of the 
Church had instilled began thenceforward to influence 
legislation. These usages did not indeed, down till the 
eighth century, transform the fundamental conception 
of marriage as a tie formed solely by consent, and need- 
ing the intervention neither of State nor of Church. 
But they worked themselves into the doctrines of the 
Church in such wise that, in later days, they succeeded 
in making matrimony so far a sacred relation as to give 
it an indissoluble character, and not only restricted the 
circle of persons between whom it could lawfully be 
contracted, but abolished the power of terminating it by 
the mere will of the parties. 



XI. Marriage under the Canon Law. 

When direct legislation by the State came to an end 
in Western Europe with the disappearance of the effec- 
tive power of the Emperors in the fifth and sixth cen- 
turies, the control of marriage began to fall into the 
hands of the Church and remained there for many gene- 
rations. To pass from the civil law of Rome to the 
ecclesiastical law of the Dark and Middle Ages is like 
quitting an open country, intersected by good roads, 
for a tract of mountain and forest where rough and 
tortuous paths furnish the only means of transit. It 
would be impossible within the limits of this Essay 



812 MARRIAGE AND DIVORCE 

to describe that law, which is copious, and embarrassed 
by not a few controverted points. All that it seems 
necessary to say here is that the Canon Law, which 
was collected and codified in the thirteenth and four- 
teenth centuries, so far adhered to the established 
Roman doctrine as to recognize, down till the Council 
of Trent, the main principle that marriage requires 
nothing more than the free consent of the parties, ex- 
pressed in any way sufficient to show that the union 
which they contemplate is to be a permanent and lawful 
union. Marriage no doubt became, in the view of the 
mediaeval Church, as of the Roman Church to-day, a 
sacrament, but it is a sacrament which the parties can 
enter into without the aid of a priest. Their consent 
ought, no doubt, in the view of the Church and of 
Canon law, to be declared before the priest and to re- 
ceive his benediction. It is only marriages ' in the face 
of the Church ' that are deemed ' regular ' marriages 1 , 
and the Fourth Lateran Council under Innocent the 
Third directed the publication of banns. But the irregu- 
lar marriage is nevertheless perfectly valid. It is indis- 
soluble (subject as hereinafter mentioned), and the chil- 
dren born in it are legitimate. A good ground for this 
indulgence may be found not only in Roman traditions, 
but also in the fact that the Church was anxious to keep 
people out of sin and to make children legitimate, so 
that it always presumed everything it could in favour of 
lawful matrimony. 

This view prevailed, and may be said to have been 
the common law of Christendom, as it had been of the 
old Roman Empire, down till the Council of Trent 2 . 
That assembly, against the strong protests of some of 
its members, passed a decree (Sessio XXIV, cap. i, 

1 See Lord Stowell's famous judgement in Lindov. Belisario {Consist. Cases, 
p. 230), where 'he examines in an interesting way the requisites of marriage under 
the ' law of nature.' 

2 Canon VII of Session XXIV anathematizes those who deny the teaching of 
the Church that the adultery of one spouse does not dissolve the vinculum matri- 
monii, and Canon X those who deny that it is better and happier to remain in a 
state of virginity or celibacy. 



MARRIAGE AND DIVORCE 813 

De Rcformatione Matrimonii) which, after reciting that 
clandestine marriages had been held valid, though 
blameworthy, declared that for the future all should 
be deemed invalid unless they took place in the presence 
of a priest and of two or three witnesses. Apparently 
it was not so much for the sake of securing the blessing 
of the Church upon every marriage as in order to pre- 
vent scandals which had arisen from the breach of a tic 
contracted in secret that the change, a grave and memo- 
rable change, was made. This great Council, which was 
intended to secure the union of Christendom under 
the See of Rome, really contributed to intensify the 
separatist forces then at work: and from it onwards one 
can no longer speak of a general marriage law even for 
Western Europe. Custom and legislation took thence- 
forward different courses, not only as between Pro- 
testant and Roman Catholic nations, but even as 
between different Protestant nations, there being no 
common ecclesiastical authority which Protestant States 
recognized. Thus the era of the Reformation is an era 
as marked in the history of marriage law as was the 
era of Constantine, when Christianity began to be domi- 
nant in the Roman Empire. And we shall see, when 
we return to the subject of divorce, that this is even 
more strikingly the case as regards the dissolubility 
of marriage than as regards the mode of contract- 
ing it. 

Before passing on to sketch the legal history of the 
institution in England — since it is impossible to find 
space here for an account of its treatment in the laws 
of other European States — it is well to note what had 
been the general tendency of the customary law of 
the Middle Ages upon the character of the marriage 
relation. 

One may sum up that tendency by saying that it had 
virtually expunged the free and simple marriage of the 
Romans under the later Republic and the Empire, and 
had substituted for it a system more closely resembling 



814 MARRIAGE AND DIVORCE 

that of the religious marriage with Hand power of early 
Rome. The ceremony had practically become a reli- 
gious one, though till the Council of Trent a religious 
service was not absolutely essential to its validity. The 
relation had become indissoluble, except by the decree 
of the Pope, who in this, as in some other respects, 
practically filled the place of the old Roman Pontifex, 
though of course both confarreation and the pontiff had 
been long forgotten 1 . It carried with it an absorption 
of the personality of the English wife into that of the 
husband, whereby all her property passed to him and 
she became subject to his authority and control. These 
conditions were the result partly of Teutonic custom, 
partly of the rudeness of life and manners; and such 
check as was imposed on them came from the traditions 
of the Roman law, and from the favour which the Canon 
law, much to its credit, showed to the wife. Of this 
favour some have found a trace in the phrase that oc- 
curs in the ' Form for the Solemnization of Matrimony ' 
in the liturgy of the Church of England, where the bride- 
groom is required to say to the bride, ' with all my 
worldly goods I thee endow '; although, in point of fact, 
the law of England gives to the bride only a very limited 
(and now easily avoidable) right to one-third of the 
husband's real estate after his death 2 . 



XII. The English Law of Marriage. 

The influence of the Roman system was, of course, 
less in England than in countries where, as in France 
and Italy, the Roman law had maintained itself in force, 

1 The pontifices had a certain oversight over the sacred marriage by confarrea- 
tio, and their action was needed to effect a diffareatio, when it was desired to ex- 
tinguish the manus of the husband over a divorced wife. 

2 Others think that this expression, which would seem to refer not to real pro- 
perty but to chattels, is a relic of ancient Teutonic custom. As is observed by 
Messrs. Pollock and Maitland {History of English Lain, vol. ii. p. 401), we must 
not assume that, from the days of savagery down to our own, all changes have 
been in favour of women. They had apparently more power over their own pro- 
perty in Anglo-Saxon times than in the thirteenth century. 



MARRIAGE AND DIVORCE 815 

either as written law or as the basis of customary law. 
But now that we come to consider the course which the 
English law of marriage has taken, let us note that this 
law has flowed in two distinct channels down till our 
own time. So much of it as pertained to the marriage 
relation itself, that is to say, to the capacity for contract- 
ing marriage (including prohibited degrees), to the mode 
of contracting it, and to its dissolution, complete or par- 
tial, belonged to the canon or ecclesiastical law and was 
administered in the spiritual courts. So much of it as 
affected the property rights of the two parties (and 
especially rights to land) belonged to the common law 
and was administered in the temporal courts. This di- 
vision, to which there is nothing parallel in the classical 
Roman law, was of course due to the fact that mediaeval 
Christianity, regarding marriage as a sacrament, placed 
it under the control of the Church and her tribunals in 
those aspects which were deemed to affect the spiritual 
well-being of the parties to it. Nevertheless the line of 
demarcation between the two sides was not always, and 
indeed could hardly be, sharply or consistently drawn. 
The ecclesiastical courts had a certain jurisdiction as 
regards property. The civil courts were obliged, for 
the purposes of determining the right of a woman to 
dower and the rights of intestate succession, to decide 
whether or no a proper and valid marriage had been 
contracted. Their regular course apparently was to 
send the matter to the bishop's court, and act upon the 
judgement which it pronounced. But this was not al- 
ways done. They often had to settle the question for 
themselves, applying, no doubt, as a rule the principles 
which the bishop's court would have followed, and (as 
has been explained by the latest and best of our English 
legal historians 1 ) they often evaded the question of 
whether there had been a canonically valid marriage by 
finding that, as a matter of fact, the parties had been 

1 Messrs. Pollock and Maitland, in their admirable History of English Law, to 
which the reader curious in these matters may be referred. 



816 MARRIAGE AND DIVORCE 

generally taken to have been duly wedded, and by pro- 
ceeding to give effect to this finding. 

The ecclesiastical lawyers were not successful in their 
treatment of such questions as fell within their sphere. 
The effort to base legal rules on moral and religious 
principles leads naturally to casuistry, and away from 
that common-sense view of human transactions and 
recognition of practical convenience which ought to be 
the basis of law. They multiplied canonical disabilities 
arising whether from pre-contract, a matter to which 
they gave a far greater importance than had previously 
belonged to it, or from relationship, either of con- 
sanguinity or of affinity; and they indeed multiplied 
these impediments to such an extent as to make the 
capacity of any two parties to enter into matrimony 
matter of doubt and uncertainty, giving wide opportuni- 
ties for chicane, and an almost boundless scope for the 
interposition of the Roman Curia, whose sale of dispen- 
sations became a fertile and discreditable source of reve- 
nue. Their treatment of divorce will be presently ex- 
amined. In their zeal to keep Christian people out 
of sin they recognized many clandestine unions as valid, 
though irregular, marriages, while at the same time 
applying strict rules of evidence which practically with- 
drew much of the liberty that had been granted by the 
lax theory of what constituted a marriage. These 
tangled subtleties regarding pre-contracts and pro- 
hibited degrees were at the time of the Reformation 
swept away by a statute of 1540 (32 Henry VIII, c. 38), 
which declared that all marriages should be lawful which 
were ' not prohibited by Goddis lawe,' and that ' no reser- 
vation or prohibition, Goddis lawe except, shall trouble 
or impeche any marriage without the Levitical degrees.' 

Two principles, however, remained unaffected by the 
legislation of this period in England. The one was the 
indissolubility of marriage, a topic to which I shall pre- 
sently return. The other was the freedom of entering 
into it, consent, and consent alone, being still all that 



MARRIAGE AND DIVORCE 817 

was necessary to make a marriage valid 1 . England, 
of course, did not recognize the decrees of Trent, so 
the old law continued in force after that Council, though 
motives like those which had guided the Council induced 
the ecclesiastical courts to lean strongly in favour of 
the almost universal practice of marrying before a 
clergyman, and to require in all other cases very strict 
evidence that a true consent, directed to the creation 
of lawful matrimony, had in fact been given. Moreover, 
where the marriage had been irregular, the spiritual 
courts might compel its celebration in the face of the 
Church. So things went on, with much uncertainty and 
some confusion between the act needed to constitute 
marriage and the evidence of that act, till the middle of 
the eighteenth century, when a statute was passed in 
a.d. 1753 (26 Geo. II, c. 33) which required all marriages 
to be celebrated by a clergyman and in a church (unless 
by dispensation from the Archbishop of Canterbury), 
and prescribed other formalities 2 . These provisions 
remained in force (except as to Jews and Quakers) until 
1836, when a purely civil marriage before a Registrar 
was permitted as an alternative to the ecclesiastical 
ceremony 3 . During the Commonwealth marriages had 
been contracted before justices of the peace, but the 
Restoration legislation, while validating the marriages 
so formed, abolished the practice. The old law remained 
in Ireland, and that was how the question what kind of 
marriage ceremony was required by the common law 
came before the House of Lords in the famous case of 
Reg. v. Millis, which was an Irish appeal, and the decision 

1 The House of Lords was equally divided upon this point in the case of Reg. v. 
Millis, in 1843 : but historical inquiry tends to confirm the view of Lord Stowell, 
that the presence of a clergyman was not essential (see Dalrymple v. Dalrymple, 
2 Haggard, p. 54). 

2 The English Dissenters soon began to complain of this Act, as they were thence- 
forth (until 1836) obliged to be married in church. Charles James Fox used to de- 
nounce the Act as ' contrary to the Law of Nature.' 

3 A civil marriage is not, however, compulsory in England as it is in France and 
some other continental countries. In Scotland it has now become fashionable for 
Presbyterians to be wedded in church, but the Scottish law, as every one knows, 
does not prescribe either a clergyman or a registrar. 

52 



818 MARRIAGE AND DIVORCE 

in which, declaring that by the common law the presence 
of a clergyman was required to make a marriage valid, 
seems to have been erroneous. 

XIII. Property Relations of the Consorts under 
English Law. 

Now let us turn to the effect of marriage in the law 
of England upon the property and the personal rights 
of the wife. 

That effect has generally been described as making 
the two consorts one person in the law. Such they cer- 
tainly were for some purposes under the older Common 
Law of England. The husband has the sole manage- 
ment of all the property which the wife had when mar- 
ried, or which she subsequently received or earned by 
her exertions. In acquiring all her property he becomes 
also liable for the debts which she owed before marriage, 
but after marriage he has not to answer for any con- 
tract of hers, because her agreements do not bind him 
except for necessaries. He is, moreover, liable for 
wrongs done by her. He cannot grant anything to her, 
or covenant with her; and if there was any contract be- 
tween him and her before marriage, it disappears by 
her absorption into his personality. She can bring no 
action without joining him as plaintiff, nor can she be 
sued without joining him as defendant. She cannot give 
evidence for or against him (save where the offence is 
against herself); and if she commit a crime (other than 
treason or murder) along with him, she goes unpunished 
(though for crimes committed apart from him she may 
be prosecuted), on the hypothesis that she did it under 
his compulsion. So in a case, in the thirteenth cen- 
tury, where husband and wife had produced a forged 
charter, the husband was hanged and the wife went free, 
' because she was under the rod of her husband ' (quia 
fuit sub virga viri sui 1 ). 

1 Pollock and Maitland, vol. ii. ch. vii. p. 404 (quoting Bracton, 429 b). 



MARRIAGE AND DIVORCE 819 

But this theory of unity is not so consistently main- 
tained as was the similar theory of the Romans regard- 
ing the marriage with Hand power. For the wife's con- 
sent to legal acts may be effectively given where she 
has been separately examined by the Court to ascer- 
tain that her consent is free; and even the fact that she 
must be joined in legal proceedings taken by or against 
her shows that she has a personality of her own, whereas 
under the Roman manus she was wholly sunk in that 
of her husband. Thus it is better not to attempt to 
explain the wife's position as the result of any one prin- 
ciple, but rather to regard it as a compromise between 
the three notions of absorption, of a sort of guardian- 
ship, and of a kind of partnership of property in which 
the husband's voice normally prevails. 

As respects her personal safety, she was better off 
than the Roman wife of early days, for the husband 
could punish the latter apparently even with death, after 
holding a domestic council, whereas the English hus- 
band could do no more than administer chastisement, 
and that only to a moderate extent. The marital right 
of chastisement seems to have been an incident to mar- 
riage in many rude societies. A traveller among the 
native tribes of Siberia relates that he found a leather 
whip usually hung to the head of the conjugal bed, al- 
most as a sort of sacred symbol of matrimony; and he 
was told that the wife complained if her husband did 
not from time to time use the implement, regarding his 
neglect to do so as a sign of declining affection. And 
it would seem that this notion remains among the 
peasantry of European Russia to this day 1 . 

Everybody has heard of the odd habit of selling a 
wife which still occasionally recurs among the humbler 
classes in England; and most people suppose that it 
descends from a time when the Teutonic husband could 
sell his consort, as a Roman one apparently could in 
the days of Hand power. There is, however, no trace 

1 Kovalevsky, Modern Customs and Ancient Laws of Russia, p. 44. 



83 MARRIAGE AND DIVORCE 

at all in our law of any such right 1 , though a case is 
reported to have arisen in a.d. 1302, when a husband 
granted his wife by deed to another man, with whom 
she thereafter lived in adultery 2 . 

The compensation given to the English wife for the 
loss (or suspension during the marriage) of her control 
over her property is to be found in her right of Dower, 
that is, of taking on her husband's death one-third of 
such lands as he was seised of, not merely at his death, 
but at any time during the marriage, and which any 
issue of the marriage might have inherited. As this 
right interfered with the husband's power of freely dis- 
posing of his own land, the lawyers set about to find 
means of evading it, and found these partly in legal pro- 
cesses by which the wife, her consent being ascertained 
by the courts, parted with her right, partly by an in- 
genious device whereby lands could be conveyed to a 
husband without the right of dower attaching to them, 
partly by giving the wife a so-called jointure which 
barred her claim. The wife has also a right, which of 
course the husband can by will exclude, of succeeding 
in case of intestacy to one-third of his personal property, 
or, if he leave no issue, to one-half. 

This state of things hardly justifies the sleek op- 
timism of Blackstone, who closes his account of the 
wife's position by observing, ' even the disabilities which 
the wife lies under are, for the most part, intended for 
her protection and benefit. So great a favourite is the 
female sex of the laws of England.' The Romans, al- 
though they allowed to women a fuller independence, 
were more candid when they said: 'In many points of 
our law the condition of the female sex is worse than 
that of the male.' 

1 My friend Mr. F. W. Maitland, whose authority on these matters is unsurpassed, 
informs me that he knows of no such trace. The practice, however, seems to have 
been not uncommon. Several instances of the sale of a wife by auction, sometimes 
along with a child, are reported from Kent between 1811 and i32o. 

2 See Pollock and Maitland, vol. ii. p. 395. 



MARRIAGE AND DIVORCE 831 

XIV. Gradual Amendment of the English 
Matrimonial Law. 

However, the Courts of Equity ultimately set them- 
selves in England to improve the wife's condition. They 
recognized some contracts and grants between husband 
and wife. They allowed property to be given to trustees 
for the sole and separate use of a wife; and if it was 
given to her with an obvious intent that it should be 
for her exclusive benefit, they held the husband, in whom 
by operation of the general law it would vest, to be 
a trustee for the wife. When during marriage there 
came to a wife by will or descent any property of which 
the husband could obtain possession only by the help of 
a Court of Equity, they required him to settle a reason- 
able part of it upon the wife for her separate use. And 
in respect of her separate property, they furthermore 
permitted the wife to sue her husband, or to be sued 
by him. While these changes were in progress, there 
had grown up among the wealthier classes the habit of 
making settlements on marriage which secured to the 
wife, through the instrumentality of trustees, separate 
property for her sole use, and wherever a woman was 
a ward of Court, the Court insisted, in giving its consent 
to the marriage, that such a settlement should be made 
for her benefit. 

By these steps a change had been effected in the 
legal position of women as regards property similar to, 
though far more gradual, and in its results falling far 
short of, the change made at Rome when the marriage 
without Hand power became general. But in England 
a recourse to the Courts has always been the luxury 
of the rich; and as the middle and poorer classes were 
not wont to go to the Courts, or to make settlements, 
it was only among the richer classes that the wife's 
separate estate can be said to have existed. At last, 
however, the gross injustice of allowing a selfish or 
wasteful husband to seize his wife's earnings and 



823 MARRIAGE AND DIVORCE 

neglect her was so far felt that several Acts were passed 
(the first in 1857), under which a woman deserted by 
her husband may obtain from a magistrate a judicial 
order, protecting from him any property she may 
acquire after desertion. By this time an agitation had 
begun to secure wider rights for married women. It 
had great difficulties to overcome in the conservative 
sentiment of lawyers, and of those who are led by law- 
yers, and more especially of members of the House of 
Lords.* Not till 1870 did the British Parliament take the 
step which the Romans had taken long before the Chris- 
tian era, and which many- American States had taken 
in the first half of the nineteenth century. A statute 
of that year, amended and extended by others of 1874 
and 1882, swept away the old rule which carried all the 
wife's property over to the husband by the mere fact of 
marriage; so that now whatever a woman possesses at 
her marriage, or receives after it, or earns for herself, 
remains her own as if she were unmarried, while of 
course the husband no longer becomes liable by mar- 
riage to her ante-nuptial debts. By these slow degrees 
has the English wife risen at last to the level of the 
Roman. The practice of making settlements on mar- 
riage still remains, especially where the wife's property 
is large, or where there is any reason to distrust the 
bridegroom; for though the interposition of trustees is 
no longer needed to keep the property from falling by 
operation of law into the husband's grasp, he may still 
press or persuade her to part with it, since she now 
enjoys full disposing power, and if she does part with 
it, she and the children may suffer. Thus custom sus- 
tains in England, and perhaps will long sustain, a system 
resembling that of the Roman Dos. Yet the number 
of persons possessing some property who marry with- 
out a settlement increases, as does the number of women 
whose strength of will and knowledge of business en- 
ables them to hold their own against marital coaxing or 
coercion. 



MARRIAGE AND DIVORCE 823 

It need hardly be said that the personal liberty of the 
wife was established long before her right to separate 
property. Says Blackstone (writing in 1763): — 

• The husband by the old law might give his wife moderate 
correction. For as he is to answer for her misbehaviour, the 
law thought it reasonable to entrust him with his power of re- 
straining her, by domestic chastisement, in the same moderation 
that a man is allowed to correct his apprentices or children, for 
whom the parent is also liable in some cases to answer. But 
this power of correction was confined within reasonable bounds, 
and the husband was prohibited from using any violence to his 
wife aliter quam ad virum, ex causa regiminis et castigationis 
uxoris suae, licite et rationabiliter pertinet. But in the politer 
reign of Charles the Second this power of correction began to 
be doubted, and a wife may now have security of the peace 
against her husband, or, in return, a husband against his wife. 
Yet the lower rank of people, who were always fond of the old 
common law, still claim and exert their ancient privilege ; and 
the Courts of Law will still permit a husband to restrain a wife 
of her liberty in case of any gross misbehaviour 1 .' 

This touching attachment to their old common law 
still survives among ' the lower rank of people ' in the 
form of wife beating. But among the politer classes 
the right to restrain a consort's liberty (except under 
very special circumstances) may be deemed to have 
become exploded since the case of Reg. v. Jackson in 
1 89 1 2 . So that now the English wife, like the Roman, 
may quit her husband's house when she pleases, and 
the suit for restitution of conjugal rights, whereby either 
could compel the other to live in the common house- 
hold, is falling into disuse, if indeed it can still be de- 
scribed as in any sense effective since the Act, passed 
in 1884, which took away the remedy by attachment. 

1 Blackstone, Commentaries, vol. i. bk. i. chap. 15. 

2 1 Q. B. p. 671 (in the Court of Appeal). The judgements are instructive. The 
Master of the Rolls goes so far as to doubt whether the husband ever had a legal 
power of correction, a curious instance of the way in which the sentiment of a later 
time sometimes tries to force upon the language of an older time a non-natural 
meaning, the new sentiment being one which the older time would have failed to 
understand. It would have been simpler to admit that what may well have been 
law in the seventeenth century is not to betaken to be law now, manners and ideas 
having so eompletely changed as to render the old rules obsolete. 



824 MARRIAGE AND DIVORCE 

The interest which belongs to these changes in the 
law, changes generally similar in their result in the Eng- 
lish and in the Roman systems, though far more gradu- 
ally made in the former than in the latter, is the interest 
of observing the methods whereby custom and legisla- 
tion have sought to work out different possible theories 
of the marriage relation. There are usually said to be 
two theories, that of Mastery, and that of Equality. On 
the former the husband is lord of the wife's property as 
well as of her person. The law puts her at his mercy, 
trusting that affection, public opinion, and a regard for 
domestic comfort will restrain the exercise of his rights. 
On the other theory, each consort is a law to him- or 
herself, each can dispose of his or her property, time, 
and local presence without the assent of the other. The 
law allows this freedom in the hope that affection, re- 
spect, and the opinion of society will prevent its abuse. 
Yet these two theories, that with which both Rome and 
England began, that with which both Rome and Eng- 
land have ended, do not exhaust the possibilities of the 
relation. For there is a third theory which, more or 
less consciously felt to be present, has influenced both 
the one and the other, creating a sort of compromise 
between them. It is the theory of a partnership in social 
life and in property similar to the partnership which 
necessarily exists as regards the children of a marriage. 
This idea is expressed by the form which the Mastery 
theory took when it declared husband and wife to be 
' one person in the law,' and in the Anglican marriage 
service where the wife's promise to obey x is met by the 
husband's declaration that he endows her with all his 
worldly goods. It also qualifies the theory of Equality 
and Independence by the practice of creating a settle- 
ment in England, and a Dos (and Donatio propter nuptias) 
at Rome, in which each of the married pair has an 
interest. 

1 This promise does not appear in the forms of marriage service commonly used 
by the unestablished churches of England, or most of them. 



MARRIAGE AND DIVORCE 825 

Any one can see that the Mastery theory, against 
which modern sentiment revolts, was more defensible in 
a time of violence, when protection for life and property 
had to be secured by physical force as well as by re- 
course to the law, than it is to-day. Any one can also 
see that there are even to-day households for which 
the Mastery theory may be well suited, as there also 
are, and always have been, even in days of rudeness and 
in Musulman countries, other households where the wife 
was, and rightly was, the real head of the family. Those 
moreover who, judging of other times by their own, 
think that the position of the wife and of women gene- 
rally must have been, under the Mastery theory, an 
intolerable one, need to be reminded not only that the 
practical working of family life depends very largely 
on the respective characters of the persons within the 
family, and on the amount of affection they entertain for 
one another, but also that it is profoundly modified by 
the conception of their relations which rules the minds 
of these persons. Law, itself the product and the index 
of public opinion, moulds and solidifies that conception, 
and the wife of the old stern days of marital tyranny 
saw no indignity or hardship in that position of humble 
obedience which the independent spirit of our own time 
resents. 

XV. Divorce under the Canon Law. 

There is one more point in which opposite theories 
of marriage have to be contrasted, and in which the 
contrast appears most strikingly. This is the point 
which touches the permanence of the relation. 

We have already seen what were the provisions of 
the Roman law upon the subject of Divorce. Those 
provisions continued to prevail in Western Europe after 
the fall of the Empire, until, apparently in the eighth, 
ninth, and tenth centuries, new rules enforced by the 
Church superseded them in the regions where the im- 



826 MARRIAGE AND DIVORCE 

perial law had been observed. A similar change oc- 
curred later in other countries such as England and 
Germany, where the ancient customs of the barbarian 
tribes had allowed the husband, and apparently in some 
cases the wife also, to dissolve the marriage and depart. 
From the twelfth century onwards the ecclesiastical 
rules and courts had undoubted control of this branch 
of law all over Christian Europe. Now the Church 
held marriage to be a sacrament and to be indissoluble. 
Divorce, therefore, in the proper sense of the term, as 
a complete severance of a duly constituted matrimonial 
tie, was held by the Church inadmissible. This view 
was based on the teaching of our Lord as given in the 
Gospels 1 , and was enforced on every bridal pair in the 
liturgical form employed at marriage, as indeed it is in 
the English liturgy to-day. Nevertheless, the Church 
recognized two legal processes which were popularly, 
though incorrectly, called divorces. 

One of these, called the divorce from the bond of 
marriage (a vinculo matrimonii), was in reality a declara- 
tion by ecclesiastical authority — that of the Pope, or a 
deputy acting under him — that the marriage had been 
null from the beginning on the ground of some canonical 
impediment, such as relationship or pre-contract. As 
already observed, the rules regarding impediments were 
so numerous and so intricate that it was easy, given 
a sufficient motive, whether political or pecuniary, to 
discover some ground for declaring almost any marriage 
invalid. The practice of granting divorces of this class, 
which was constantly made a means of obliging the 
great ones of the earth and augmenting papal revenues, 
may sometimes have been really useful for the purpose 
of dissolving the ill-assorted unions of those who could 
secure a decree from the ecclesiastical authorities. 
Technically, however, it was not a dissolution of mar- 
riage, but a declaration that no marriage had ever 

1 Messrs. Pollock and Maitland refer to the dooms of Aethelbert as showing the 
permissibility of divorce in early English law (History of English Law, vol. ii. 
p. 390). 



MARRIAGE AND DI70R0E 827 

existed, and therefore it rendered children born in the 
relation illegitimate l . 

The other kind of divorce was that called ' from board 
and bed ' (a mcnsa et thoro). It was a regular part of the 
jurisdiction of the Church Courts, and effected a legal 
separation of the two parties from their joint life in one 
household, while leaving them still man and wife, and 
therefore unable to marry any other person. The status 
of the children was of course not affected. 

XVI. The Later Law of Divorce in England 
and Scotland. 

This law prevailed over all Europe till the Reforma- 
tion, and continued to prevail in all Roman Catholic 
countries till a very recent time. In some it still pre- 
vails, at least so far as Roman Catholics are concerned. 
But in most Protestant countries it received a fatal 
shock from the denial, in which all Protestants agreed, 
of the sacramental character of marriage, and from the 
revival, in some of such countries, of the view of mar- 
riage as a purely civil contract. Thus in Scotland the 
courts began, very soon after the Roman connexion 
had been repudiated, to grant divorces; and in a.d. 1573 
a statute added desertion to adultery as a ground for 
divorce. In England, however, where the revulsion 
against the doctrines of mediaeval Christianity was less 
pronounced, and where the Ecclesiastical Courts re- 
tained their jurisdiction in matrimonial causes, the old 
law went on unchanged, save that after the abolition of 
many of the canonical impediments, mentioned above, 
divorces a vinculo, declaring marriages to have been 
originally invalid, became far more rare. Nevertheless, 
attempts had been made by some of the more energetic 
English Reformers to assert the dissolubility of mar- 
riage. A draft ecclesiastical code (called the Reformatio 

1 But canonical ingenuity discovered methods by which in some cases the legiti- 
macy of the children might be saved though the marriage was declared void. 



828 MARRIAGE AND DIVORCE 

legum ecclesiasticarum) was prepared, but never enacted; 
and Milton argued strongly on the same side in his 
well-known but little read book. About his time cases 
begin to occur in which marriages were dissolved by 
Acts of Parliament; a practice which became more fre- 
quent under the Whig regime of the early Hanoverian 
kings, and ultimately ripened into a regular procedure 
by which those who could afford the expense might 
secure divorces. The party seeking divorce was re- 
quired to first obtain from the Ecclesiastical Court a 
divorce a mensa et tlwro, which obtained, he introduced 
his private Bill for a complete divorce. It was heard 
by the House of Lords as a practically judicial matter, 
in which evidence was given, and counsel argued the 
case for and (if the other party resisted) against the 
divorce. It was usually by the husband that these di- 
vorce Bills were promoted, and indeed no wife so ob- 
tained a divorce till a.d. 1801 1 . 

This characteristically English evasion of that princi- 
ple of indissolubility for which such immense respect was 
professed lasted till 1857, long before which time the 
existence of a law which gave to the rich what it refused 
to the poor had become a scandal 2 . In that year an Act 
was passed, not without strenuous opposition from those 
who clung to the older ecclesiastical theory, which estab- 
lished a new Court for Divorce and Matrimonial causes, 
empowered to grant either a complete dissolution of 
marriage (divorce a vinculo matrimonii) or a ' judicial 
separation ' (divorce a mensa et thoro). This statute ad- 
hered to the rule which the practice of the House of 
Lords had established, and under it a husband may 



1 There had also sprung up the practice of effecting private separations between 
a husband and a wife by means of a deed executed by each of them, and such a 
deed presently came to be recognized as a defence to a suit by either party for the 
restitution of conjugal rights. 

2 Probably the English Jews were permitted to exercise in the seventeenth and 
eighteenth centuries the right of divorce which their own law gave them. But in 
those days the Jews were so cut off from the general English society that the phe- 
nomenon passed almost unnoticed. They were a very small community, living 
practically under their personal law, as the Parsis do in Western India to-day. 



MARRIAGE AND DIVORCE 829 

obtain a divorce on proof of the wife's infidelity, whereas 
the wife can obtain it only by proving, in addition to 
the fact of infidelity on the husband's part, either that 
it was aggravated by bigamy or incest, or that it was 
accompanied by cruelty or by two years' desertion. To 
prevent collusion a public functionary called the Queen's 
Proctor is permitted to intervene where he sees grounds 
for doing so. Misconduct by the husband operates as 
a bar to his obtaining a divorce. Thus the law of Eng- 
land stands to-day. Attempts have been made to alter it 
on the basis of equality, so that whatever misconduct on 
the wife's part entitles a husband to divorce shall, if 
committed by the husband, entitle her likewise to have 
the marriage dissolved. But these attempts have not 
so far succeeded 1 . 

The law of Scotland is more indulgent, and not only 
permits a wife to obtain divorce for a husband's in- 
fidelity alone, but also recognizes wilful desertion for 
four years as a ground for divorce. In other respects 
its provisions are generally similar to those of the Eng- 
lish law. Ireland, however, remains under the old pre- 
Reformation system. There is no Divorce Court, and 
no marriage can be dissolved save by Act of Parlia- 
ment. The bulk of the people are Roman Catholics, 
and among Protestants as well as Roman Catholics the 
level of public sentiment and of conjugal morality has 
apparently been higher than in England, nor have at- 
tempts been made, at any rate in recent years, to obtain 
the freedom which England and Scotland possess. The 
United Kingdom thus shows within its narrow limits 
the curious phenomenon of three dissimilar systems 
of law regulating a matter on which it is eminently de- 
sirable that the law should be uniform. England has a 
comparatively strict rule, and one which is unequal as 
between the two parties. Scotland is somewhat laxer, 

1 The Act of 1857 (amended in some points by subsequent statutes) contains pro- 
visions intended to prevent collusion between the parties, and empowers the Court 
to regulate the property rights of the divorced persons and the custody of the chil- 
dren (if any) of the marriage. 



880 MARRIAGE AND DIVORCE 

but treats both parties alike. Ireland has no divorce 
at all. So little do theoretical considerations prevail 
against the attachment of a nation to its own sentiments 
and usages. 

I reserve comments on these systems till we have fol- 
lowed out the history of the English matrimonial law 
in the widest and most remarkable field of its develop- 
ment, the United States of America. 

XVII. The Divorce Laws of the United States. 

When the thirteen Colonies proclaimed their separa- 
tion from Great Britain in 1776, they started with the 
Common Law and all such statute law as had in fact 
been in force at the date of the separation. Accord- 
ingly they had no provision for dissolving marriages, 
nor any Ecclesiastical Courts to grant dissolutions, see- 
ing that such tribunals had never existed in America, 
where there had been no bishops. Presently, however, 
they began to legislate on the subject, and the legisla- 
tion which they, and the newer States added to the 
Union since 1789, have produced presents the largest 
and the strangest, and perhaps the saddest, body of 
legislative experiments in the sphere of family law 
which free, self-governing communities have ever tried. 
Both marriage and divorce belong, under the Ameri- 
can Constitution, to the several States, Congress hav- 
ing no right to pass any laws upon the subject, except 
of course for the District of Columbia and the Terri- 
tories. Thus every one of the (now) forty-five States 
has been free to deal with this incomparably difficult and 
delicate matter at its own sweet will, and the variety of 
provisions is endless. As it would require a great deal 
of space to present these in detail, I shall touch on only 
some salient points. 

Originally, the few divorces that were granted were 
obtained, following the example of England, by means 
of Acts of the State legislature. The evils of this plan 



MARRIAGE AND DIVORVE 831 

were perceived, and now nearly all the States have by 
their Constitutions forbidden the legislature to pass such 
Acts, since Courts have been provided to which applica- 
tion may be made. These are usually either the ordi- 
nary inferior Courts of the State, or the Chancery Courts 
(where such survive). No State seems to have, like 
England, erected a special Court for the purpose. One 
State only, South Carolina, does not recognize divorce 
at all. In 1872, under the so-called ' carpet-bagger gov- 
ernment,' set up after the War of Secession, a statute 
was passed in that State authorizing divorces for infi- 
delity or desertion, but in 1878, when the native whites 
had regained control, this statute was repealed, so that 
now, if a divorce is obtained at all, it must be obtained 
from the legislature outside the regular law. South 
Carolina has the distinction of being to-day probably 
the only Protestant community in the world which con- 
tinues to hold marriage indissoluble. No State has 
fewer Roman Catholic citizens: Presbyterians and Me- 
thodists are the strongest religious bodies. 

The causes for which divorce may be granted range 
downwards from the strictness of such a conservative 
State as New York, where conjugal infidelity is the sole 
cause recognized for an absolute dissolution of the mar- 
riage, to the laxity of Washington, where the Court 
may grant divorce ' for any cause deemed by it suffi- 
cient, and when it shall be satisfied that the parties can 
no longer live together.' \ Desertion is in nearly all 
States recognized as a ground for dissolution. So is 
cruelty by either party, or the reasonable apprehension 
of it by either. So in many States the neglect of the 
husband to provide for the wife, habitual intemperance, 
indignities or insulting treatment, violent temper, and 
(in a smaller number) the persistent neglect of her do- 
mestic duties by the wife, grave misconduct before 
marriage unknown to the other party, insanity, an indict- 
ment for felony followed by flight, vagrancy, are, or 
have been, prescribed as among the sufficient grounds 



832 MARRIAGE AND DIVORCE 

for divorce. In some States a sentence of imprison- 
ment for life ipso hire annuls the marriage of the prisoner, 
permitting the other partner to remarry, and, in most, 
conviction for felony or infamous crime is a ground on 
which the Court may decree, and presumably will de- 
cree, the extinction of the marriage. Moreover, there 
are still a few States where over and above the judicial 
process open to a discontented consort, the State legis- 
lature continues to grant divorces by special statutes. 
Delaware is, or very recently was, such a State; and 
in the twenty years preceding 1887 it would seem that 
four-fifths of its divorces, not indeed very numerous 
(289 for twenty years), were so obtained. The laws of 
most States also provide for what the Americans call 
a ' limited divorce/ and the English a ' judicial separa- 
tion,' equivalent to the old divorce a mensa et thoro. It 
leaves the marriage still valid, but relieves the parties 
from any obligation to live together; and in some States 
the Court in pronouncing a decree of divorce may 
change the name of the wife (in Texas and Arizona the 
name of either party), while in Vermont it may also 
change the names of the children who are minors. 

Not less remarkable than the multiplication of grounds 
for divorce in the American States is the extreme laxity 
of procedure which has grown up. The Courts having 
jurisdiction are usually the Courts of the county, tri- 
bunals of no great weight, whose ill-paid judges are 
seldom men of professional eminence. The terms of 
residence within a State which are required before a 
petitioner can apply for a divorce are generally very 
short. The provisions for serving notice on the re- 
spondent or defendant to the divorce suit are loose 
and seem to be carelessly enforced. Some States allow 
service to be effected by publication in the newspapers, 
if the other party be not found within the State, and this 
of course often happens when the applicant has recently 
\ come to the State, most likely a distant one, from that 
in which he or she lived with the other consort. Fre- 



MARRIAGE AND DIVORCE o3ii 

quently he comes for the express purpose of getting his 
marriage dissolved. ^ f Although most States declare col- 
lusion or connivance by the other party to be a bar to 
the granting of a divorce, and some few States provide 
that a public official shall appear to defend in unde- 
fended petitions, the provisions made for detecting these 
devices are inadequate; and in not a few cases the pro- 
ceedings do little more than set a judicial seal upon 
-that voluntary dissolution by the agreement of the two 
consorts, which was so common at Rome. It is doubt- 
less a point of difference between the Roman law and 
that of modern American States that in the former the 
parties could by their own will and act terminate the 
marriage : in the latter the Courts must be invoked to do 
so. But where the Courts out of good-nature or care- 
lessness made a practice of complying with the applica- 
tion of one party, unresisted or feebly resisted by the 
other, this difference almost disappears. The facilities 
which some of the more lax States hold out to those 
who come to live in them for the requisite period, and 
who then procure from the complaisant Court a divorce 
without the knowledge of the other consort, constitute 
a grave blot on the administration of justice in the 
Union generally, for a marriage dissolved in one State 
(where jurisdiction over the parties has been duly 
created) is prima facie dissolved everywhere * ; and al- 
though the decree might conceivably be reversed if evi- 
dence could be given that it had been improperly 
obtained, it is usually so difficult to obtain that evi- 
dence that the injured party, especially an injured wife, 
must perforce submit. 

1 In two or three States the law provides that when an inhabitant goes into some 
other State for the purpose of getting a divorce for a cause arising within the State, 
or for a cause which the law of the State would not authorize, a divorce granted 
to him shall have no effect within the State. 

53 



834 MARRIAGE AND DIVORCE 

XVIII. Statistics of Divorce in America. 

Under these lax laws, and the not less lax administra- 
tion of them, the number of divorces has in the United 
States risen with formidable rapidity. In 1867 there 
were 9,937 granted, in 1886, 25,535, an increase of nearly 
157 per cent, in twenty years. The total number re- 
corded to have been granted in those twenty years (and 
the record is probably not quite complete) is 328,716, 
a ghastly total, exceeding all the divorces granted in 
the same years in all other Christian countries 1 ./ The 
population of the Republic increased about 60 per cent, 
within the same twenty years. Taking the two census 
years 1870 and 1880, the percentage of increase was, for 
the population, 30.1, for divorce, 79.4, or more than 
twice as great ; and while in many States the percentage 
of divorce increase is far larger than 79.4, there are 
only five in which divorce has not grown faster than 
population. 

The increase is most rapid in the south-western States, 
in several New England States, and especially in the 
States of the far West, less marked in the north Atlantic 
States generally, and in those between the Atlantic and 
the Mississippi. It is greater in cities than in rural 
districts 2 . 

It is, in the South, apparently somewhat greater 
among the coloured people than among the whites 3 . 
It is greater among native-born Americans than among 
immigrants from Europe. And it need hardly be said 

1 In Canada during the same twenty years only 135 divorces were granted in a 
population which was, in 1881, 4,324,000. In some provinces of the Dominion di- 
vorces could be obtained only by private Act of Parliament. 

2 In an interesting article in the Political Science Quarterly for March, 1893, Mr 
W. F. Wi'llcox (now (1900) of the U. S. Census Office) argues that the divorce rate 
is influenced by depression of trade, declining when the lower middle and working 
class, among whom it is frequent, are less able to afford it. 

Mr. Willcox quotes some remarkable figures from Japan showing an extremely 
high divorce rate there. In 1886 there were in Japan 315,311 marriages and 117 • 
964 divorces. This is four and a-half times the rate in the U. S. of America, which 
comes next. 

3 The conditions prevailing among a coloured population which had, under sla- 
very, no legal marriage, go far to explain this phenomenon. 



MARRIAGE AND DIVORCE 835 

that it is far larger among Protestants than among 
Roman Catholics. These points deserve to be remem- 
bered, because they throw some light on the causes 
which have produced the increase. 

Some other facts to be noted before we pass on to 
consider those causes are the following. 

The grounds on which divorces have been granted '] 
are often trivial, even frivolous. I select a few from a 
long list given in the American Official Report dealing 
with the subject x . 

A wife alleges that her husband has accused her sister 
of stealing, thereby sorely wounding her feelings. 

Another says, ' During our whole married life my hus- 
band has never offered to take me out riding (= driv- 
ing). This has been a source of great mental suffering 
and injury.' 

Another complains that her husband does not wash 
himself, ' thereby inflicting on plaintiff great mental 
anguish.' 

Another says that her husband ' quotes verses from 
the New Testament about wives obeying their husbands. 
He has even threatened to mash the plaintiff, and has 
drawn back his hand to do it.' The decree which 
awarded a divorce to this wife contains the following: 
' I find that when plaintiff was sick and unable to work 
defendant told her the Lord commanded her to work, 
and that he was in the habit of frequently quoting Scrip- 
tural passages in order to show her she was to be obe- 
dient to her husband.' 

A wife alleges that her husband does not come home 
till ten o'clock at night, and when he does return he 
keeps plaintiff awake talking. He also keeps a saloon, 
which sorely grieves mind of plaintiff. He replies, say- 

1 This Report, published in 1889 by the United States Labour Bureau at Wash- 
ington, contains many instructive data. The Annual Reports of the voluntary 
Association, called the League for the Protection of the Family, also deserve to be 
consulted. Its corresponding secretary is the Rev. Dr. S. W. Dike of Auburndale, 
Mass., who has written a number of thoughtful articles upon the subject, and to 
whom I am much indebted for documents supplied to me and for the expression of 
his own views. 



836 MARRIAGE AND DIVORCE 

ing, ' Plaintiff should not be ashamed of him because 
temporarily in the liquor business : that he may do bet- 
ter some day: his father was a high State Officer in 
Germany.' This wife gets a divorce on the ground of 
' mental cruelty.' 

In all these cases, and in many others enumerated in 
the Report where the grounds are equally slight, the 
divorce is granted. And similar cases are given in which 
the husband obtains divorce on the ground of the wife's 
cruelty. V 

' Mental cruelty ' is of course a term hard to define, 
as may be seen by examining the views that have been 
expressed by English judges on cruelty, and it is not 
wonderful that the easy-going courts of most American 
States should give a wide extension to such an elastic 
conception. 

Of the causes recorded as those for which marriages 
are dissolved, the most frequent are Desertion, which 
represents 38.5 of the whole number of divorces; then 
Infidelity; then Cruelty; then Intoxication. Of the total 
number of divorces granted during the twenty years 
1867-1886, 65.8 per cent., very nearly two-thirds, were 
granted to wives and 34.2 per cent, to husbands. Of 
the total number granted for infidelity 56.4 per cent. 
were granted to husbands and 43.6 to wives. But in 
the other chief causes wives are more frequently the 
successful applicants. In cruelty they obtain seven 
times as many decrees; in desertion one and a-half times 
as many; in intoxication eight times as many. The Re- 
port, however, shows that intemperance is either directly 
or indirectly responsible for a larger proportion of the 
total cases than its place in the table represents. 

I take from a valuable paper by an Ohio lawyer (Mr. 
Newton D. Baker) 1 some facts which illustrate the state 
of things in one of the so-called ' Western Reserve ' 
counties in that great State. In Cuyahoga county the 
total yearly number of marriages is about 3,400, and the 

1 Western Reserve Law Journal for October, 1899. 



MARRIAGE AND DIVORCE 837 

number of divorce suits annually brought is about 500. 
In the year 1898-1899, the whole number of divorce 
suits brought in the Court of Common Pleas was 562 
out of a total number of 3,848 suits for all causes, i.e. 
about 12 per cent. In the State of Ohio the annual 
number of marriages is from 33,000 to 40,000; the total 
number of divorce suits brought from 3,700 to 4,200; 
and the total number of divorces granted annually about 
3,000 in a population of about 4,000,000. Mr. Baker 
observes that ' five of the causes on which the law allows 
divorce, viz. wilful absence of either party from the 
other for three years, extreme cruelty, fraudulent con- 
tract, any gross neglect of duty, and habitual drunken- 
ness for three years, are all so vague and elastic as to 
amount to unrestricted license in the matter of divorce.' 
Out of 366 divorces granted in the year 1898-1899, wil- 
ful absence and gross neglect of duty accounted for 150, 
extreme cruelty for 109, habitual drunkenness for 88, 
and infidelity for 14 only (five being unaccounted for). 
He adds, ' The personal temper and disposition of in- 
dividual judges (there are more than eighty in the State 
entrusted with power to dissolve marriages) have come 
to be so well recognized as the limits of the jurisdic- 
tion of the Common Pleas Court in granting divorces, 
that now it is the practice of many lawyers to continue 
and delay the hearing of divorce causes until some judge, 
known to be lenient in this matter, rotates to the bench 
of the Court in which such cases are set for hearing. 
. . . Many of the judges appear to be oblivious to the 
fact that one of the most important interests of so- 
ciety is at stake in every divorce proceeding, and either 
out of unscientific ideas upon the subject, or out of 
mere complaisancy towards attorneys and litigants, 
they have lent themselves to a looseness of practice 
which is in some degree responsible for the deplorable 
results/ 

In the United States applications for divorce are 
mostly made after a marriage of short duration. In 



838 MARRIAGE AND DIVORCE 

one-half of the cases divorce was granted within six 
years from the date of marriage. Oddly enough, the 
average duration of a marriage terminated by divorce 
varies much between State and State. It is shortest in 
the southern States, falling to 6.48 years in Arkansas, 
and 6.91 in Tennessee, highest in the north-east, rising 
to 11.69 i n New Jersey, and 12.12 in Massachusetts. 
This may be partly due to the fact that the more con- 
servative States require a longer period of desertion 
to be proved. The duration of marriage is somewhat 
longer in cases where the wife applies, which may indi- 
cate either that she is more patient under her lot than 
the husband, or that her comparative ignorance of the 
world makes her less able to resort to the Courts. The 
fact that desertion is the cause most frequently assigned 
by wives may also have its effect. 

It would be important to know what proportion the 
desire to marry some one else bears to the other causes 
which induce persons to seek to escape from their exist- 
ing wedlock. Unfortunately American statistics of mar- 
riage, which are in many States loosely kept, do not 
enable us to answer this question 1 . Practising lawyers 
say that nothing is commoner. It would appear, how- 
ever, from some European 2 figures that there is in 
reality no greater tendency for divorced men, and 
scarcely any greater tendency for divorced women, to 
remarry within a few years of the dissolution of their 
marriage than there is for widowers and widows to do 
so after the death of a consort; and it has often been 



1 The Report for 1891 of the League for the Protection of the Family says ; 
' Connecticut for two years reports the number of divorced persons married each 
year. In 1889 there were 286 such — 135 men and 151 women, which is a little above 
one-third the number divorced in the year. In 1890 there were 477 divorces granted, 
or 954 individuals divorced ; and there were 350 divorced persons — this year 207 
women and 143 men — who married again during the year. An extended induction 
along this rine shouid be possible. Guesses based on mere observation are untrust- 
worthy guides in legislation or social reform.' 

a This point has been worked out by M Bertillon, a well-known French statis- 
tician. I owe my knowledge of it to an acute and suggestive paper (some of whose 
conclusions however seem to me questionable) by Mr. W. F. Willcox, of Cornell 
University, New York. ' The Divorce Problem ' : New York, 1891. 



MARRIAGE AND DIVORCE 839 

observed that persons who have been most happily mar- 
ried are among those most likely to marry again. 

The rapid growth of divorce under the hasty legis- 
lation which marked the first half of the present century 
began about thirty years ago to create some alarm in 
the United States. The subject was much discussed, 
an association was formed to grapple with the evil, and 
in several States laws were passed restricting a little 
the causes entitling persons to be divorced 1 . In those 
States there has accordingly been some slight diminu- 
tion in the number of divorces granted, but elsewhere 
the rate has gone on increasing, though apparently (for 
there are no very recent statistics) a little more slowly 
than it was doing down to 1886. In some States it 
seems, after increasing, to have now reached a stable 
average to the population. This would appear to be the 
case in Switzerland also. 

XIX. Divorce in Modern European Countries. 

It is not only in America that the evil grows. In all 
modern countries where divorce is permitted, that is to 
say in all Protestant and some Roman Catholic States, 
the same tendency is perceptible. Among the Protes- 
tant nations the impulse of the Reformation caused 
sooner or later a rejection of the old canonical doctrine 
of indissolubility; so we may say, speaking broadly, that 
in Germany, Switzerland, Holland, Denmark, Sweden 
and Norway, a marriage may be dissolved not only for 
the infidelity of either party (since in all these countries 
husband and wife are treated alike), but also for deser- 
tion and imprisonment for crime. Some laws go even 
further, allowing mutual consent to be a cause. Among 
Roman Catholic countries, France retained the canoni- 
cal rule till the Revolution. The legislation of 1792 

1 Efforts have recently been made to induce States to adopt identical legislation 
on this among other topics • and there seems to be a prospect that a certain num- 
ber will do so. 



840 MARRIAGE AND DIVORCE 

granted extreme freedom, which was so largely used that 
we are told that in 1797 there were more divorces than 
marriages. In 1816 the principles of Catholicism re- 
gained control, and held it till 1884, when a law was 
passed permitting marriages to be dissolved for the in- 
fidelity of either party, or for the condemnation of either 
to an infamous punishment, and authorizing the trans- 
mutation into an absolute divorce of a judicial separa- 
tion which has lasted for three years. The law of Bel- 
gium is similar, but goes a little further in allowing 
mutual consent to be a ground, though one surrounded 
by many restrictions. Austria and Hungary allow di- 
vorce (under rules similar to those of Protestant coun- 
tries, i.e. on the grounds of infidelity, grave crime, 
desertion, cruelty, &c.) to non-Catholic citizens, while 
Italy, Portugal, and Spain adhere to the Tridentine sys- 
tem which recognizes only a judicial separation (a mensa 
et thoro) and not a dissolution of the tie. Russia still 
leaves matrimonial causes to the ecclesiastical courts, 
but allows them to dissolve marriages on the ground of 
infidelity, a heavy criminal sentence, or disappearance 
of one consort for five years 1 . 

In nearly all these countries such statistics as are 
available show an increase in the number of divorces 
during recent years. For instance in Belgium, a pre- 
dominantly Roman Catholic country, divorces rose be- 
tween 1884 and 1893 from 221 to 497. In France the 
suits for divorce rose from 1773 in 1884 to 7445 in 1891. 
The number of divorces compared with the number of 
marriages almost doubled in those seven years. In the 
German Empire there were 5342 divorces granted in 
1882 and 6178 in 1891. In Holland they were, in 1883, 
189, in 1892, 354. A like period saw them rise in Sweden 
from 218 to 316, in Norway from 7 to 82 (!), in Greece 
from 251 to 788. The rise is slighter in Austria. Swit- 
zerland alone, though its law is comparatively lax, shows 

1 According to a high Russian authority, divorce was freely practised by the 
Russian peasantry under their ancient customs. 



MARRIAGE AND DIVORCE Ml 

no increase 1 . In England divorces rose from 127 in 
i860 to 390 in 1887, an increase much more rapid than 
that of population or of marriages 2 . Judicial separa- 
tions rose between the same years from 11 to 50. In 
Scotland divorces which in 1867 numbered 32 had, in 
1886, grown to 96, a still more rapid rise, as it covers 
only twenty instead of twenty-seven years. It is worth 
noting that in England it is usually the husband who 
petitions for a divorce, and almost always the wife who 
seeks a judicial separation. 

The growth in so many otherwise dissimilar countries 
of this disposition to shake off the marriage tie is a 
remarkable phenomenon, which deserves more attention 
than it seems to have yet received in England. Though 
strongest in Protestant countries, it is not confined to 
them, as appears from the instances of Belgium, Bavaria 
and Greece. Though there is no divorce a vinculo in 
Italy or Spain, the same causes which make it frequent 
elsewhere may be at work, though less conspicuously, 
in countries where the State aids the Church in check- 
ing their outward manifestation. Divorce is an obtru- 
sive symptom of the disease, not the disease itself. 

What is the disease? or, lest we should seem to pre- 
judge the merits of the matter, what is the source of 
this disposition to look upon the marriage tie with eyes 
different from those of a century ago, and to yield more 
easily to the temptation to dissolve it? The cause, 
whatever it is, must lie deep, for it manifests itself under 
many different conditions; and it may possibly be not 
any single cause, but a combination of several concur- 
rent social or moral changes, independent springs whose 
confluence swells the stream of tendency. 

A similar phenomenon happened once before in his- 
tory. At Rome also, as we have already seen, a very 
strict theory of marriage and a corresponding strictness 

1 I take the above figures from Parliamentary Paper [C-7639] of 1895. No 
figures are given for Russia or Denmark. 
3 Parliamentary Return of March 9, 1889. 



840 MARRIAGE AND DIVORCE 

granted extreme freedom, which was so largely used that 
we are told that in 1797 there were more divorces than 
marriages. In 1816 the principles of Catholicism re- 
gained control, and held it till 1884, when a law was 
passed permitting marriages to be dissolved for the in- 
fidelity of either party, or for the condemnation of either 
to an infamous punishment, and authorizing the trans- 
mutation into an absolute divorce of a judicial separa- 
tion which has lasted for three years. The law of Bel- 
gium is similar, but goes a little further in allowing 
mutual consent to be a ground, though one surrounded 
by many restrictions. Austria and Hungary allow di- 
vorce (under rules similar to those of Protestant coun- 
tries, i.e. on the grounds of infidelity, grave crime, 
desertion, cruelty, &c.) to non-Catholic citizens, while 
Italy, Portugal, and Spain adhere to the Tridentine sys- 
tem which recognizes only a judicial separation (a mensa 
et thoro) and not a dissolution of the tie. Russia still 
leaves matrimonial causes to the ecclesiastical courts, 
but allows them to dissolve marriages on the ground of 
infidelity, a heavy criminal sentence, or disappearance 
of one consort for five years 1 . 

In nearly all these countries such statistics as are 
available show an increase in the number of divorces 
during recent years. For instance in Belgium, a pre- 
dominantly Roman Catholic country, divorces rose be- 
tween 1884 and 1893 from 221 to 497. In France the 
suits for divorce rose from 1773 in 1884 to 7445 in 1891. 
The number of divorces compared with the number of 
marriages almost doubled in those seven years. In the 
German Empire there were 5342 divorces granted in 
1882 and 6178 in 1891. In Holland they were, in 1883, 
189, in 1892, 354. A like period saw them rise in Sweden 
from 218 to 316, in Norway from 7 to 82 (!), in Greece 
from 251 to 788. The rise is slighter in Austria. Swit- 
zerland alone, though its law is comparatively lax, shows 

1 According to a high Russian authority, divorce was freely practised by the 
Russian peasantry under their ancient customs. 



MARRIAGE AND DIVORCE Ml 

no increase 1 . In England divorces rose from 127 in 
i860 to 390 in 1887, an increase much more rapid than 
that of population or of marriages 2 . Judicial separa- 
tions rose between the same years from 11 to 50. In 
Scotland divorces which in 1867 numbered 32 had, in 
1886, grown to 96, a still more rapid rise, as it covers 
only twenty instead of twenty-seven years. It is worth 
noting that in England it is usually the husband who 
petitions for a divorce, and almost always the wife who 
seeks a judicial separation. 

The growth in so many otherwise dissimilar countries 
of this disposition to shake off the marriage tie is a 
remarkable phenomenon, which deserves more attention 
than it seems to have yet received in England. Though 
strongest in Protestant countries, it is not confined to 
them, as appears from the instances of Belgium, Bavaria 
and Greece. Though there is no divorce a vinculo in 
Italy or Spain, the same causes which make it frequent 
elsewhere may be at work, though less conspicuously, 
in countries where the State aids the Church in check- 
ing their outward manifestation. Divorce is an obtru- 
sive symptom of the disease, not the disease itself. 

What is the disease? or, lest we should seem to pre- 
judge the merits of the matter, what is the source of 
this disposition to look upon the marriage tie with eyes 
different from those of a century ago, and to yield more 
easily to the temptation to dissolve it? The cause, 
whatever it is, must lie deep, for it manifests itself under 
many different conditions; and it may possibly be not 
any single cause, but a combination of several concur- 
rent social or moral changes, independent springs whose 
confluence swells the stream of tendency. 

A similar phenomenon happened once before in his- 
tory. At Rome also, as we have already seen, a very 
strict theory of marriage and a corresponding strictness 

1 I take the above figures from Parliamentary Paper [C-7639] of 1895. No 
figures are given for Russia or Denmark. 

2 Parliamentary Return of March 9, 1889. 



844 MARRIAGE AND DIVORCE 

was blessed by the Church. It was deemed a Sacra- 
ment. It was treated, for doctrinal reasons, as indis- 
soluble. There were, to be sure, plenty of marriages 
essentially unhallowed, plenty of marriages contracted 
for the most sordid reasons, plenty of marriages with 
little affection; and there were also marriages tainted 
by sin. The standard of conjugal fidelity was in the 
fifteenth century a low one. Nevertheless the tie was 
deemed to be one which religion sanctified, and religious 
sentiment must have had a restraining effect upon ten- 
der consciences, and particularly upon the wife, women 
being usually more susceptible to religious emotion than 
men are. 

It gave the husband, in most countries, and notably 
in England, an almost complete control over the pro- 
perty rights of the two spouses, and in this way held 
them together. 

It gave the husband, and notably in England, almost 
complete control over the person and conduct of the 
wife, impressing upon her mind her dependence on him, 
and her duty to obey him. No doubt where the wife's 
intellect or will was the stronger of the two her intellect 
guided or her will prevailed. Nevertheless her normal 
attitude was that of a submissive identification of her 
wishes and interests with his. 

Whether these things made for affection, and for hap- 
piness, the outcome of affection, is another question. 
What we have to remark is that at any rate they drew 
the bond very tight, and formed a solid basis for family 
life. Bride and bridegroom took one another for richer 
for poorer, for better for worse, in sickness and in 
health, till death should them part. 

What has been the course of things since the 
Reformation? 

In Protestant countries the religious character of mar- 
riage has been sensibly weakened. Although the cere- 
mony, in most of such countries, and notably in Eng- 
land, still usually receives ecclesiastical benediction, the 



MARRIAGE AND DIVORCE 845 

tie is not to men's or even to women's minds primarily 
a religious tie. To most Protestants, the wedding ser- 
vice in church, or before a minister of religion, is rather 
an ornamental ceremony than essentially a sacred vow. 
The duties of the spouses are conceived of by them in 
a more or less worthy way, according to their respective 
religious and moral standards, but not generally, or at 
least seldom vividly, as a part of their duties towards 
God. 

This is perhaps part of that general decline in the 
intensity of the feeling of sin which marks the Protes- 
tantism of our own time as compared with that of earlier 
centuries. I do not mean that people are any more 
sinful than they were — probably they are not. They 
were sinful enough in the seventeenth century. But 
wrong-doing presents itself more frequently to all but 
the most pious minds rather as something unworthy, 
something below their standard of honour, something 
disapproved by public opinion, than as something which 
deserves the wrath of God, and affects their true rela- 
tion to Him as their Father. Thus the element of sin in 
any breach, be it slight or be it grave, of conjugal duty, 
would seem to be less present to the conscience of the 
average husband or wife now than it was formerly, at 
least if we are to take the literature (including the the- 
ological literature) of former times, when set beside that 
of our own, to be any guide. 

The inquiry how far any similar change has passed 
upon sentiment in Roman Catholic peoples would lead 
us far, nor am I competent to pursue it. The conception 
of sin itself is not quite the same thing to pious Catholics 
as it is, or was, to pious Protestants. But, broadly speak- 
ing, marriage doubtless retains to Roman Catholics, and 
to the Orthodox church of the East, more of a sacred 
character than it does to Protestants, and the change in 
this respect from the sixteenth to the nineteenth century 
is doubtless greater among Protestants. 



846 MARRIAGE AND DIVORCE 

XXI. Tendencies affecting the Permanence of 
the Marriage Tie. 

In most countries, and notably in England and the 
United States, married women have obtained power over 
their own property, including their earnings, and are 
now less dependent upon their husbands for support 
than they were formerly. 

In most countries married women have far greater 
personal independence than in earlier days. They can 
dispose of their lives as they please, and are permitted 
both by law and by usage an always increasing freedom 
of going where and doing what they will. For social 
purposes, they are in England (at least those who be- 
long to the upper and middle classes are), and still more 
in the United States, though somewhat less in such 
countries as Germany and Sweden, entirely the equals 
of men, so that the retention of the promise to obey 
in the marriage service of the English Church excites 
amusement by its discrepancy from the facts. 

Over and above these changes directly affecting the 
matrimonial relation, there are other changes which 
have modified life and thought. The old deference to 
custom and tradition, and therewith the stability of the 
social structure as a whole, have been weakened. Men 
move much more from place to place, so their minds 
have grown less settled. The habit of reading, and in 
particular the excessive reading of newspapers, may 
have produced a quickness of apprehension, but it has 
been accompanied by a measure of volatility and incon- 
stancy in opinion. These in their turn have bred a lik- 
ing for novelty and excitement, and have confirmed the 
disposition to question old-established doctrines. There' 
is an increase, especially among women, of the things 
called ' self-consciousness ' and ' nervous tension.' Both 
men and women are more excitable, and women in par- 
ticular are more fastidious. Pleasures other than mate- 
rial are probably more appreciated, but the desire for 



MARRlAUti AND DIVORCE 847 

pleasure, and the belief that every one has a right to it, 
seem to be stronger and more widely diffused than ever 
before. Some will perhaps add that, in an age when the 
belief in a future state of rewards and punishments is 
less deep and less general than it once was, the desire 
to have out of this life all the pleasure it can be made to 
yield is naturally stronger; yet I doubt whether beliefs 
regarding a future life have ever influenced men's con- 
duct so much as the whilom universality of those beliefs 
might lead us to assume. 

All these tendencies are partly due to, and are cer- 
tainly much increased by, that aggregation of population 
into great cities which makes one of the most striking 
contrasts between our time and the ages which formed 
English and American character. It is in industrial and 
progressive communities, such as those of Germany, 
Belgium, France, and England, that these tendencies are 
most pervasive and effective. They are even more per- 
vasive and multiform in the United States than in 
Europe. It would be strange indeed if they did not 
affect the theory and the practice of domestic relations 
and the conception of the family. And their influence 
will evidently be greatest in the country where the ideas 
of democratic equality, and the notion that every human 
being may claim certain indefeasible ' human rights,' 
have struck deepest root. 

The idea that men and women are entitled to happi- 
ness, and therefore to have barriers to their happiness 
removed, is strong in the United States, and has gone 
far to prompt both the indulgence of the laws and the 
over-indulgence shown in administering them. This 
idea has its good side. The fuller recognition of the 
right of women to develop their individuality and be 
more than mere appendages to men is one of the con- 
spicuous gains which the last two or three generations 
have brought. It has helped to raise the conception of 
what marriage should be, so we must expect to find 
that it has made women less tolerant of an unsym- 



848 MARRIAGE AND DIVORCE 

pathetic or unworthy partner than they were in the 
eighteenth century. 

It would not therefore be wonderful if, even apart 
from such facilities as legislation has allowed, and as- 
suming that there was one and the same divorce law 
over all civilized countries, the United States should 
show, as Switzerland shows in Europe, an exceptionally 
high percentage of divorces to marriages. Newspapers 
are more read there than in any other country; and 
newspapers contain a great deal about matrimonial 
troubles which would be better left unpublished. The 
life of the middle class is more full of stir and change 
and excitement than it is in Europe. Both the process 
described as the emancipation of women, and the admis- 
sion of women to various professions and employments 
formerly confined to men, have gone further there than 
in Europe. So has the carrying on of industries in 
factories instead of at home. So has the habit of living 
in hotels or boarding-houses. 

All these conditions are less favourable than were the 
conditions of a century ago to the maintenance of do- 
mestic life on the old lines. And over and above these, 
there has come that extreme laxity of the law and of 
judicial procedure which has been already described. 
Thus we can easily account for the comparative fre- 
quency of divorce in the United States, while yet 
noting, for this is the point of real importance, that 
the phenomena of the United States are not isolated, 
but merely the most conspicuous instance of a ten- 
dency which is at work everywhere, and which 
springs from some widely diffused features of modern 
life. 

The points of similarity between the history of divorce 
at Rome and its history in recent times need not be 
further insisted on. There is, however, one to which 
I have not yet adverted. At Rome the increase of con- 
jugal infidelity and that of divorce would seem, from 
such data as law and literature give us, to have gone on 



MARRIAGE AND DIVORCE 849 

together, each fostering the other. Is there any like 
connexion discoverable now? 

This is a question which it appears impossible to an- 
swer either generally or for any particular country. 
There are no statistics available, except for matrimonial 
causes coming into the Courts, and we can never tell 
what proportion the offences that are disclosed bear to 
those which remain hidden. There have been countries 
where the level of sexual morality was extremely low, 
at least among the wealthier classes, though no divorce 
was permitted. There may be countries where the very 
fact that the level is low keeps down the number of 
applications to the Court, because the injured party 
acquiesces and takes his or her revenge in like offences. 
Common talk, and literature which as regards the past 
may sometimes represent nothing more than common 
talk 1 , are unsafe guides, as any one will see who asks 
himself how much he knows about the moral state of his 
own country in his own time. He can form some sort 
of guess about the character of the ' social set ' he 
moves in, but how little after all does he know about 
the classes above or below his own! Thus there can 
be very few persons in England whose means of infor- 
mation entitle them to say that the undoubted increase 
of divorce cases in our Courts since i860 represents 
any decline in the average conjugal morality of the peo- 
ple. As regards the United States, I have heard the 
most opposite views expressed with equal confidence 
by persons who ought to have been equally well-in- 
formed. Judicial statistics do not prove that infidelity 
has become more common there, for the largest propor- 
tion of divorces granted is for desertion, 38.5 per cent, 
of the whole, those for infidelity being little more than 
half of that percentage, or about one-fifth of the whole. 

1 Sometimes not even that. A few years ago, in the United States Senate, some 
one quoted, in order to prove the corruption of public life in England, a play re- 
presented there, in which a Secretary of State or his wife was involved in a dis- 
graceful job connected with an Indian railway. Nobody in England had taken 
such a thing seriously enough to comment on the absurdity of it. 

54 



850 MARRIAGE AND DIVORCE 

At the same time the smallness of this percentage may 
count for less than might appear, for it is probable that 
in States where divorce can be obtained for other 
grounds, less serious and easier to prove than infidelity 
is, petitioners will, where they have a choice of several 
charges to make, put forward a less grave charge pro- 
vided it is sufficient to secure their object. So far as 
my own information goes, the practical level of sexual 
morality is at least as high in the United States as in 
any part of northern or western Europe (except possibly 
among the Roman Catholic peasantry of Ireland), and 
experienced judges in America have told me that, odious 
as they find the divorce work of their courts, the thing 
which strikes them in the cases they deal with is more 
frequently the caprice and fickleness, the irritability and 
querulous discontent of couples who have married on 
some passing fancy, than a proclivity to breaches of 
wedded troth. 

Indeed, so far from holding that marriages are more 
frequently unhappy in the United States than in western 
Europe, most persons who know both countries hold 
the opposite to be the case. On the whole, therefore, 
there seems no ground for concluding that the increase 
of divorce in America necessarily points to a decline 
in the standard of domestic morality, except perhaps in 
a small section of the wealthy class, though it must be 
admitted that if this increase should continue, it may 
tend to induce such a decline. 

The same conclusion may well be true regarding the 
greater frequency of divorce all over the world. There 
is no reason to think that sexual passion leading to con- 
jugal infidelity is any commoner than formerly among 
mankind. More probably passion is tending to grow 
rather weaker than it was formerly. But that which we 
call Individualism, viz. the desire of each person to do 
what he or she pleases, to gratify his or her tastes, lik- 
ings, caprices, to lead a life which shall be uncontrolled, 
by another's will — this grows stronger. So, too, what- 



MARRIAGE AND DIVORCE 851 

ever stimulates the susceptibility and sensitiveness of 
the nervous system tends to make tempers more irrita- 
ble, and to produce causes of friction between those who 
are in constant contact. Here is a source of trouble 
that is likely to grow with the growing strain of life, and 
with the larger proportion which other interests bear in 
modern life to those home interests which formerly 
absorbed nearly the whole of a woman's thoughts. It 
is temper rather than unlawful passion that may prove 
in future the most dangerous enemy to the stability of 
the marriage relation. 

XXII. Influence of the Church and the Law. 

The view of marriage as a tie which the parties in- 
tend to enter into for their lives, and which the law 
holds indissoluble, has hitherto rested not so much on 
any abstract theory or sentiment which men and women 
have entertained regarding it as upon the three authori- 
ties which have formed both sentiment and opinion. 
These three are the Church, the State, and Tradition, 
that is to say the beliefs which people adopt because 
they have come down from the past. The attitude of 
the Church has in Protestant nations sensibly altered. 
In some countries it altered in the sixteenth century. 
It has everywhere altered in the nineteenth. So, too, 
the support given to the old view by the State has in 
like manner become in those same countries much 
weaker, and in some countries, as for example in Swit- 
zerland and many American States, has almost disap- 
peared. Public opinion has itself been largely formed 
by the Church and the Law, and may, when they have 
ceased to form it, be no longer an effective guardian of 
the permanence and dignity of marriage. In such demo- 
cracies as those of the United States, the wish of an 
active minority to procure changes in the law easily 
prevails, because no one cares to resist, and because 
abstract principles suggest that the more everybody is 



852 MARRIAGE AND DIVORCE 

permitted to do as he pleases, the happier everybody will 
be. When the law has been changed, public opinion, 
that is to say the opinion of the majority who do not 
think seriously about the matter, soon adjusts itself to 
the new law, and little social blame attaches to those who 
use the licence which the law has granted. Seeing then 
how largely the law, whether of the Church or of the 
State, moulds the sentiment of the people on such a 
subject as this, and seeing that the Church no longer 
makes or administers law in Protestant countries, one 
may say that the civil law is practically left to keep 
their conscience. This tendency of the Church to ab- 
negate its old functions makes the question of the way 
in which the Law should deal with divorce a question 
of critical importance 1 . 

As regards America, the opinion of the wisest and 
best informed people, though far from unanimous in 
points of detail, agrees in thinking that many States 
have gone too far in the way of laxity. 

XXIII. Does the English Law of Divorce 
need Amendment ? 

In England the topic has been less discussed; yet 
there are some who hold that women ought to be placed 
on the same footing as men, and allowed to obtain a 
divorce from an unfaithful husband, even if he has not 
been guilty of cruelty. Others would go even further 
and admit other grounds as entitling either party to a 
dissolution of the marriage. The late Lord Hannen, 
whose opinion was entitled to exceptional weight, for 
he had presided over the English Divorce Court for 
many years with singular ability and fairness, told me 
that he thought the English law might with advantage 
be somewhat relaxed, so numerous were the cases in 

1 Some of the Churches in the United States have however tried to deal with the 
matter. The Protestant Episcopal Church is at this moment (igoi) considering a 
draft canon. 



MARRIAGE AND DIVORCE 858 

which it was obviously best that a miserable marriage 
should be extinguished altogether. Yet the example 
of the United States (not to speak of Rome) suggests 
the danger of any but a very slow and cautious advance 
in that direction. Great as is the hardship of chaining 
an innocent to a vicious or drunken or brutal consort, 
the evil of permitting people to get rid of one another 
merely because they are tired of one another is no less 
evident. When the question is asked, ' What is the best 
divorce law? ' the only answer can be, ' There is no good 
divorce law.' There are some faults in human nature 
which always have existed and apparently always will 
exist; and there is no satisfactory method of dealing 
with them. All that can be done is to choose between 
different evils. 

Upon the whole, after weighing the considerations 
on both sides, the balance seems to incline to a change 
in the law which should not only equalize the position 
of the wife and the husband, by giving the former the 
same right to dissolution as the latter, but should also 
allow dissolution in cases of hopeless lunacy and of long- 
continued desertion. 

Throughout this discussion it has been assumed that 
marriages ought to be permanent, and that obstacles 
should be thrown in the way of those who seek to dis- 
solve them. It may be asked whether this assumption 
is justified. There is a school of thought, small per- 
haps, but of long standing and supported by a few emi- 
nent names, which insists that marriage should last no 
longer than love does; and therefore that the pair should, 
as in Rome, be permitted to separate with freedom of 
re-marriage, whenever they are no longer held together 
by inclination. There is also a larger school, which 
feels so keenly the misery caused by ill-assorted unions 
as to think that the parties should be allowed to dissolve 
them, when certain terms for reflection and repentance 
prescribed by law have been completed. 

I do not propose to argue afresh this question, for 



854 MARRIAGE AND DIVORCE 

it has been often and copiously argued. Yet it is not 
a question to be dismissed without argument, for in 
our day no moral or religious dogma, however long 
established or widely held, is permitted to rest upon 
authority alone. But to argue it fully would draw us 
far from the historical inquiry we have been engaged 
on. It is enough to indicate in a word, or two the main 
grounds which have in fact led the vast majority of 
thoughtful men to the assumption aforesaid. The first 
of these is the interest of children. Few things can be. 
more harmful to the moral well-being of the offspring 
of a marriage than the divorce of their parents, which 
destroys one or other of the two best influences that 
work on childhood and may poison even the influence 
that is left. The next is the fact that, though it is pro- 
fessedly in the interest of suffering wives that facility 
of divorce is usually advocated, such facility tends to 
the injury of wives even more than of husbands, because 
men are, it would seem, more fickle and more prone 
to seek the dissolution of marriage when they are tired 
of their partner, or have formed some illicit connexion, 
or seek to marry some other woman. The third is 
that whatever weakens the conception of the marriage 
tie as a permanent one strikes at the whole character 
and essence of the marriage relation. It is often said 
that when people know they have got to live together, 
they are forced to exercise the self-control necessary 
to enable them to live together. But the moral effect of 
the sense of permanence in wedded union goes deeper 
than this. It is in the complete identification of the 
two beings and the two lives that the true happiness of 
a happy marriage lies. The sense that each has abso- 
lutely committed himself or herself to the other — each 
taking charge of the joys and sorrows and hopes of the 
other, each trusting to the other his or her joys and 
sorrows and hopes — gives to the relation an incompara- 
ble sanctity, and makes the strongest possible appeal to 
the best feelings of each. If selfishness and falsehood 



MARRIAGE AND DIVORCE 855 

can be overcome by anything, it is by calling into action 
the sense of obligation to fulfil this trust which the en- 
during nature of the union is calculated to inspire. Were 
the union to cease to be thought of as enduring, were it 
to be in the minds of the parties, as their minds are 
moulded by the practice and the prevailing notions of 
society, merely the result and expression of a possibly 
transient passion, or of the willingness to try the experi- 
ment of a joint household, the sanctity and the sense of 
obligation would receive an irreparable blow. 

Thus we are driven to the conclusion that numerous 
as the cases may be in which, if one looked only at the 
wretchedness of the parties to an ill-assorted union, one 
might desire to see that union dissolved, more harm than 
good may on the whole result from permitting the par- 
ties to dissolve their union at their pleasure, as the later 
Romans did, as the French did during the Revolution, 
and as some American States practically do to-day; and 
more harm than good may result even from extending 
in large measure the opportunities for divorce which 
the law of England or that of Scotland at this moment 
affords. 

How vital to the future of humanity are the interests 
involved is admitted on all hands by those who would 
change, as well as by those who would uphold, the con- 
ception of marriage as a permanent relation. Great as 
is the contrast between that sensual and unworthy view 
which finds its expression in the polygamy of the East 
and the view which Christianity has formed among 
Western peoples, it is hardly greater than that which 
exists between the view of marriage as a life-union, dis- 
soluble only when infidelity has shattered its basis, and 
the view which puts it at the mercy of the caprice of a 
volatile nature or the temper of an irritable one. Poly- 
gamy has been and remains a blighting influence on 
Musulman society, and on the character of individual 
Musulmans. So if marriage were to become a transitory 
relation, as it practically was among the upper classes in 



856 MARRIAGE AND DIVORCE 

the Roman Empire, the effects upon family life and on 
the character of men and women would in the long run 
be momentous. 

XXIV. Some General Reflections: Changes in 
Theory and in Sentiment regarding Marriage. 

A few words more to sum up the general result of 
our survey. We have seen that the relations of the 
wife to the husband have been regulated sometimes by 
one, sometimes by the other of two systems, which have 
been called those of Subordination and Equality 1 . In 
all countries custom and law begin with the system of 
Subordination. In some, the wife is little better than 
a slave. Even at Rome, though she was not only free 
but respected, her legal capacity was merged in her 
husband's. 

This system vanishes from Rome during the last two 
centuries of the Republic, and when the law of Rome 
comes to prevail over the whole civilized world, the 
system of Equality (except so far as varied by local 
custom) prevails over that world till the Empire itself 
perishes. 

In the Dark Ages the principle of the subordination 
of the wife is again the rule everywhere, though the 
forms it takes vary, and it is more complete in some 
countries than in others. It was the rule among the 
Celtic and Teutonic peoples before they were Christian- 
ized. It finds its way, through customs conformable to 
the rudeness of the times, into the law of those coun- 
tries which, like Italy, Spain, and France, were only par- 
tially Teutonized, and retained forms of Latin speech. 
It holds its ground in England till our own time, though 

1 By Equality I do not mean any recognition of Identity or even Similarity as 
respects capacity and practical work (though the tendency is in that direction), but 
the equal possession of private civil rights and the admission ol an individuality 
entitled to equal respect and an equally free play of action. Such Equality is per- 
fectly compatible, given sufficient affection, with a complete identification of the 
consorts in the harmony which comes of the union of diverse but complementary 
elements. 



MARRIAGE AND DIVORCE 857 

latterly much modified by the process which we call 
the emancipation of women, a process which, under the 
influence of democratic ideas, has moved most swiftly 
and has gone furthest among the English race in North 
America. But in our own time the principle of equality 
has, in most civilized countries, triumphed all along the 
line, and so far as we can foresee, has definitely tri- 
umphed. One must imagine a complete revolution in 
ideas and in social habits in order to imagine a return 
to the system of Subordination as it stood two cen- 
turies ago. 

As there have been two systems determining the re- 
lations of husband and wife in respect of property and 
of personal control, so also have there been through- 
out all history two aspects of the institution of marriage, 
one in which the sensual and material element has pre- 
dominated, the other in which the spiritual and religious 
element has come in to give a higher and refining cha- 
racter to the relation. In this case, however, it is not 
possible to make the relative importance of these two 
aspects synchronize with the general progress of civili- 
zation, nor even with the elevation of the position of 
women. It is true that among barbarous and some 
semi-civilized races the physical side of the institution 
is almost solely regarded, and that we may suppose a 
remote age when primitive man was in this respect not 
much above the level of other animals. But there have 
been epochs when civilization was advancing while the 
moral conception of marriage, or at any rate the popu- 
lar view of marriage as a social relation, was declining. 
The tie between husband and wife in the earlier days of 
Rome was not only closer but more worthy and whole- 
some in its influence on the lives of both than it had 
become in the age of Augustus. Christianity not only 
restored to the tie its religious colour, but in dignifying 
the individual soul by proclaiming its immortality and 
its possibility of union with God through Christ gave a 
new and higher significance to life as a whole, and to 



858 MARRIAGE AND DIVORCE 

the duties which spring from marriage. The greatest 
advance which the Christian world made upon the pagan 
world was in the view of personal purity for both sexes 
which the New Testament inculcated, a view absent 
from the Greek and Italian religions and from Greek 
and Latin literature, though there had been germs of 
it in the East, where habits of sensual indulgence more 
degrading than those of the West were opposed by 
theories of asceticism, which passed into and tinged 
primitive and mediaeval Christianity. 

The more ennobling view of love and of the marriage 
relation held its ground through the Middle Ages. 
There was plenty of profligacy — as indeed the ideal 
and the actual have never been more disjoined than in 
the Middle Ages. But in spite of profligacy on the one 
hand, and the glorification of celibacy on the other, and 
notwithstanding the subjection of women in the matter 
of property and even of personal freedom, the concep- 
tion of wedded life as recognized by the law of the 
Church and enshrined in poetry remained pure and lofty. 
That the Reformation took away part of the religious 
halo which had surrounded matrimony may be ad- 
mitted. Whether this involved a practical loss is a diffi- 
cult question. It may be that, in their anxiety to be rid 
of what they deemed superstition, and in their disgust 
at the tricky and mercenary way in which ecclesiastical 
lawyers had played fast and loose with the intricate 
rules of canonical impediment, the Reformers of Ger- 
many, Scandinavia, and Scotland forgot to dwell suffi- 
ciently on the fact that though marriage is a civil rela- 
tion in point of form and legal effect, it ought to be, to 
Christians, essentially also a religious relation, the true 
consecration of which lies not in the ceremonial blessing 
of the Church, but in the solemnity of the responsibilities 
it involves. Yet it is not clear that, in point of domestic 
happiness or domestic purity, the nations which have 
clung to the mediaeval doctrine stood a century ago, 
or stand now, above those which had renounced it. 



MAHIUAOE AND DIVORCE 859 

General theories regarding the influence of particular 
forms of religion, like theories regarding the influence 
of race, are apt to be misleading, because many other 
conditions have to be regarded as well as those on which 
the theorist is inclined to dwell. 

Whoever regards the doctrines of the Roman Catholic 
Church respecting marriage and realizes her power over 
her members will expect to find a higher level of sexual 
morality in Roman Catholic countries than he will in 
fact find. So on the other hand will he be disappointed 
who accepts that view of the superiority in social virtues 
of peoples of Teutonic stock which finds so much favour 
among those peoples, for dissolutions of the marriage 
tie have latterly grown more frequent than they formerly 
were among Protestant and Teutonic nations, and are 
apparently less condemned by public opinion than was 
the case in older days. 

The material progress of the world, the mastery of 
man over nature through a knowledge of her laws, the 
diffusion of knowledge and of the opportunities for 
acquiring it, are themes which ceaselessly employ the 
tongues of speakers and the pens of journalists, while 
they swell with pride the heart of the ordinary citizen. 
But they are not the things upon which the moral ad- 
vancement of mankind or the happiness of individuals 
chiefly turns. They co-exist, as the statistics of recent 
years show, with an increase over all, or nearly all, 
civilized countries of lunacy, of suicide, and of divorce. 



XVII 

INAUGURAL LECTURE 1 

THE ACADEMICAL STUDY OF 
THE CIVIL LAW 

Narrow as is the sea that parts England from the continent 
of Europe, it has cut her off as effectually from many conti- 
nental influences as if she lay far out in mid-Atlantic. When 
it is considered how close are our affinities of blood with the 
Low-German races, and how intimate during the Middle Ages 
were our relations, intellectual as well as political, with the 
whole of Western Europe, the individuality of the English 
people and its institutions appears singularly well-marked; 
and one is surprised to see in how many points the great 
nations of the continent resemble one another and understand 
one another, while all alike differ from us, and are compara- 
tively incomprehensible to us. This strangeness of England 
is what most strikes the foreigner who comes among us ; be 
he Frenchman, German, Spaniard, or Italian, he seems less 
at home in England than anywhere else in Christendom. As 
in the woodland wealth of our country, as in the architecture 
of our towns and the structure of our houses, so also in the 
social usages and mental habits of Englishmen one discovers 
something peculiar, something bearing witness to a prolonged 
isolation, to an exemption from those influences, speculative 
as well as practical, which have operated on all or nearly all 
the other members of the European commonwealth. 

Such isolation has been in no respect more marked or more 

■» Delivered at Oxford, February 25, 1871, on entering- on the duties of the Regius 
ProfesseT»Hi D of Civil Law. 



INAUGURAL LECTURE 861 

fruitful in results than in the case of our law. In spite of the 
immense power of the mediaeval church, in spite of the influ- 
ence of the universities, and of the strangers who flocked to 
them from all quarters, the Roman jurisprudence exerted a 
comparatively slight influence upon the technical develop- 
ment of our law and the formation of our habits of legal 
thought. Here, where the language, and to a great extent 
the customs of the people, were of Teutonic origin, it found 
a less congenial soil than in Italy or France, while there were 
no such political associations with the Roman name as those 
which gave the Corpus Juris its authority in Germany. What- 
ever be the cause, it is clear that Roman law was never tho- 
roughly domesticated in England. True it is that one of the 
first notices we have of the existence of our University is that 
which mentions the Lombard Vacarius as lecturing on law 
(doubtless on the Digest of Justinian) at Oxford, under the 
patronage of Archbishop Theobald, in the days of King 
Stephen ] ; and there is abundant evidence that the study was 
regularly pursued there down till and in the sixteenth cen- 
tury. The statutes of the older colleges make provision for 
some of the fellows proceeding to degrees in law ; and indeed 
the only law degrees Oxford has given, since those in canon 
law were abolished by King Henry the Eighth, have been 
degrees in civil law. But the customary or common law, 
unrecognized in the universities, gained exclusive possession 
of the seats of legal study in London. That hostility to the 
pretensions of the foreign laws which had been so forcibly 
expressed by the barons at Merton in Henry the Third's time, 
and again by the Parliament of Richard the Second, main- 
tained ever after a watchful and jealous attitude. Persons 
who had mastered Roman law at Oxford were obliged, when 
they practised in the courts at Westminster, to disguise or 
disclaim any appeal to its authority ; and when the Reforma- 
tion finally broke the link between England and Rome, and 

1 ' Oriuntur discordiae graves, lites et appellationes antea inauditae. Tunc leges 
et causidici in Angliam primo vocati sunt, quorum primus erat magister Vacarius. 
Hie in Oxenefordia legem docuit, et apud Romam magister Gracianus et Alexan- 
der, qui et Rodlandus, in proximo papa futurus, canones compilavit.'— (Gervas. 
Dorob. ; Act. Pontif. Cantitar. ; Theod6aldus.~) 



862 INAUGURAL LECTURE 

in doing so loosened the ties that bound English men of 
letters to the general movement of European learning and 
thought, the ctudy of the canon law virtually expired among 
us, while that of the Civil Law maintained only a feeble and 
flickering life l . Its practical utility (except to practitioners 
in the ecclesiastical courts) was apparently at an end ; and in 
the cloud of dullness and sluggishness that settled down upon 
Oxford and Cambridge at the end of the seventeenth century, 
it only shared the fate of other studies which had as much to 
commend them to an active and curious intellect. A few 
distinguished publicists and lawyers, such as Arthur Duck, 
Selden, Hale, Holt, and those two brightest ornaments of 
the English bench, Lord Hardwicke and Lord Mansfield, 
were well versed in its rules, but the great mass of English 
lawyers regarded it with suspicion and dislike, and the very 
praise which Hale bestows testifies to the slight interest felt 
in it. ' He set himself much,' says Bishop Burnet his biogra- 
pher, ' to the study of the Romane law, and though he liked 
the way of judicature in England by juries much better than 
that of the civil law, where so much was trusted to the judge, 
yet he often said that the true grounds and reasons of law 
were so well delivered in the Digests, that a man could never 
understand law as a science so well as by seeking it there, 
and lamented much that it was so little studied in England.' 

The ancient rivalry of the Civil and the Common law 
proved eventually the cause of mischief to both. Having 
reigned supreme in the universities, the civil law had never 
taken root in the Inns of Court, and when it fell in the uni- 
versities it fell utterly. On the other hand, the common 
lawyers, whose study was originally not recognized in Oxford 
or Cambridge, were well enough content with the position 
they had obtained for it in London, and do not seem to have 
seen how much was to be gained by introducing it into the 
ancient seats of learning. Thus both systems, to the loss as 
well of the profession as of the universities, came to be 

1 For some time after the breach Englishmen used to resort to continental uni- 
versities, and there, of course, they found Roman law taught ; but this practice 
died out before very long. 



INAUGURAL LECTURE 863 

neglected in the very places where they might best have been 
cultivated in a philosophical spirit; and it was not until Mr. 
Viner founded his Chair in a.d. 1756 that English law was 
recognized in Oxford as an academic study, while in Cam- 
bridge no provision was made for the teaching of it until the 
beginning of the present century. 

That isolation of England to which the neglect of the Civil 
Law may be ascribed has of late years perceptibly diminished. 
Owing partly to the more frequent and easy intercourse which 
improved means of communication have produced, partly to 
the removal of old national prejudices, partly to that in- 
creased recognition of the power of ideas which is commonly 
associated with the growth of democracy, civilized Europe 
has within the last eighty or ninety years become much more 
of a single intellectual commonwealth than it has been at 
any time since the Reformation, perhaps, indeed, since the 
fall of the Roman Empire. The long-standing jealousy of 
the Civil Law as a foreign system, associated with the over- 
weening pretensions of emperors and popes, has at last van- 
ished. A century ago this feeling was still so active, that 
Lord Mansfield's enemies found it worth while to charge him 
with having, as a Scotsman, an undue partiality for the 
Roman law, and designing, by means of its despotic princi- 
ples, to sap the liberties of Englishmen — ' corrupting by 
treacherous arts the noble simplicity and free spirit of our 
Saxon laws ; ' though as a matter of fact, Lord Mansfield left 
Scotland at the age of three, and the use which he made of 
his knowledge of Roman jurisprudence was made by applying 
its rational principles to the elucidation of the civil, and 
indeed chiefly of the commercial parts of the English system. 
Such prejudices seem now to lie far behind. We live in the 
midst of a general unsettling of respect for whatever exists, 
which does not spare the laws or even the constitution of 
England, and welcomes new ideas from every quarter. Thus 
the influence of the great German civilians begins to tell 
upon English students, while the rise of a vigorous historical 
school in England has quickened our curiosity in whatever 
helps to explain the ancient and the mediaeval world. The 



864 INAUGURAL LECTURE 

feeling so awakened has happily coincided with an interest 
in the scientific amendment of the form of English law, dif- 
ferent from that desire to improve and correct its substance 
of which Bentham was the first exponent, and which inspired 
the labours of Romilly and Brougham. 

The efforts of these great men were chiefly directed to the 
removal of harsh enactments, of rules due to economic errors, 
and of technicalities which defeated the ends of justice. 
Their modern successors, finding the law purged of its grosser 
faults, are rather concerned with its reduction into a more 
orderly and systematic shape. The three leading questions 
of reform at this moment are questions of form, relating not 
so much to substance as to the shape and form which the law 
ought to take. What are the best means of fusing legal and 
equitable procedure ] ? How may Acts of Parliament be 
drawn more concisely and symmetrically ? How are we to 
frame, out of the vast and chaotic mass of our reported cases 
and statutes, an organized body of rules, a Digest or a Code ? 
Finding themselves thus brought face to face with the pro- 
blem which Justinian partially solved, and which several mo- 
dern states, as notably France, Austria, Prussia, and Italy have 
again had to solve % English lawyers are being driven to ex- 
amine the means whereby codification was accomplished, 
and the results that followed it. They feel that for the exe- 
cution of so great a work men are needed who have had some- 
thing more than an empirical training, and are disposed to 
believe that in any systematic course of legal history and 
philosophy which might be devised to form the mind of the 
jurist as preliminary to his purely professional studies, a 
chief place should be assigned to the study of the Roman 
law. Thus, what with our own actual needs, what with the 
influence of the scientific spirit of the Continent, there has 
been awakened in England an interest in the Civil Law and 
an estimate of its worth which, although still matter rather 
of faith than of sight, is yet strong enough to give the Uni- 

1 This was effected by the Judicature Act of 1873. 

a To these one may now add the new German Empire, which was coming into 
being when this Lecture was delivered in a.d. 1871. A Civil Code for the Empire 
began to be prepared in 1872 and came into force in 1900. 



INAUGURAL LECTURE 865 

versity of Oxford not merely a motive for endeavouring to 
revive the study, but a reasonable hope that it may be revived 
with success, to the substantial benefit as well of the univer- 
sities themselves as of the legal profession. 

To prove that Roman law does deserve in England, and 
especially from the University, more attention than it now 
receives may well be thought, at least in Oxford, a spot 
which was long its home, a superfluous labour. That it fills 
so large a place in the world's history, that it is the fruit of 
so great an expenditure of human genius and industry, is of 
itself a sufficient reason why it should engage the labours of 
a learned body which has, in Bacon's words, taken all know- 
ledge to be its province. I may therefore content myself with 
touching upon some of the purposes which the study may be 
made to serve, and indicating some of the directions in which 
it may most usefully be pursued; premising always that aca- 
demical study has two objects, the furtherance of learning 
and discovery, and the preparation of young men to be, not 
merely useful and active in their future occupations, but 
also, in the widest sense of the word, good citizens. These 
two objects have been sometimes, under the names of Re- 
search and Education, opposed to one another, and no small 
controversy has been maintained touching their respective 
claims. Are they not in truth closely intertwined ? since 
the greater the zeal wherewith a study is pursued, so much 
the greater is the teacher's influence on the taught ; and since 
experience shows that when the work of education has been 
neglected by schools and universities, such neglect has not 
been caused by any absorption in abstract studies, but by 
mere dullness and self-indulgence, as fatal to study as they 
can be to education. 

The various utilities of a knowledge of the Roman Law fall 
into two classes : those which connect it with the liberal 
studies of a university, and specially with classical philology, 
with history, and with ethics ; and those which belong rather 
to the faculty of law, and entitle it to a place in a strictly 
professional curriculum. 

Taking the former of these heads first, there is no more 
55 



866 INAUGURAL LECTURE 

obvious reason for pursuing the study than the light which it 
throws upon Roman history, which is, it can hardly be too 
often repeated, substantially the foundation of all modern 
European history. No people was ever so thoroughly per- 
meated by legal ideas as were the Romans ; none rated the 
dignity of the profession so high, spent so much pains in the 
elaboration of legal rules, and formed, let it be added, so 
worthy a conception of what law ought to be. Hence the 
whole political history of the Roman people and state is so 
involved with its legal institutions, that it can be understood 
only when regarded as derived from and conditioned by them. 
This is signally true not only of the regal and earlier republi- 
can period — in all early states of society, legal customs do 
for a people what a political constitution does in later times, 
or, in other words, public and private law are closely inter- 
twined — it is true also of the republic in the days of Sulla 
and Julius Caesar, and of the long period of the Empire. 
Most of the constitutional arrangements of the Roman state 
depended upon those of private law, and many of the gravest 
political questions turned upon legal doctrines. The subject 
of the Agrarian laws, for instance, is intimately involved 
with the legal conception of possession, as distinct from 
ownership, and can hardly be mastered without a knowledge 
of technical theory. The structure of the gens, the nature of 
the agnatic tie and of the patria potestas, the judicial charac- 
ter of the chief administrative magistrates, the doctrine of 
adoption — all and each of them exerted a powerful influence 
on the political fortunes of Rome. Adoption, for instance, 
became from time to time under the Empire the means of 
working a system of appointment to the sovereign power, 
which could show the merits without the evils of hereditary 
succession. I forbear to dwell on the number of historical 
incidents, like that of Virginia and Appius Claudius, or of 
allusions in poetical and philosophical writers, such as those 
which every scholar remembers in Horace, Ovid, Juvenal, 
and most of all in Cicero, which only a knowledge of the 
civil law can elucidate. A student of the classics need not 
read the Corpus Juris merely for the sake of understanding 



INAUGURAL LECTURE 867 

these, any more than one is bound to read Coke or Hale for 
the sake of better seeing the point of the numerous legal 
phrases in Shakespeare. Few would go so far as the enthu- 
siastic civilian who maintained that every divine ought to 
learn Roman law, because there are passages in the New 
Testament which a knowledge of it serves to explain. But, 
though every scholar need not, some scholars certainly ought ; 
for there is much in the literature, and, indeed, in the lite- 
rary spirit and feeling of the Romans, which is due to legal 
influences, and which can be fully apprehended and ex- 
pounded by those only who have made themselves familiar 
with these influences in their source. In particular, such 
study is necessary in order to appreciate the character of the 
Empire in its relation to the peoples of the Mediterranean 
whom it embraced. Rome's great gift to the world was her ju- 
risprudence ; and the most interesting chapter in her history is 
that which traces, coincidently with the gradual extension of 
Roman citizenship and Roman law to the subject races, the 
steady amelioration in its positive rules, and its development 
from a harsh and highly technical system into one grounded 
on principles of reason and justice, principles which are in- 
deed common to all civilized peoples, but which the Roman 
jurists were the first to expound and apply. To this great 
work was devoted, from the time of Augustus onwards, nearly 
all the genius and labour, not of Rome merely but of the 
Roman world, which was not expended on abstract specula- 
tion ; and it is more than an accident that long after the lan- 
guage of Virgil and Cicero had become debased in the hands 
of florid rhetoricians and soulless versifiers, its purity and its 
nervous precision were preserved in the hands of men like 
Papinian and Modestinus. 

A second utility which may be claimed for our study, is its 
bearing upon the history of mediaeval and modern thought. 
When the Western Empire perished amidst the storms of the 
fifth century, its law did not perish with it, but remained 
a chief factor in European history, more widely, although 
less directly, influential. The barbarian conquerors, who 
brought with them only the rude customs by which they had 



868 INAUGURAL LECTURE 

lived in their native forests, soon felt the need of a regular 
legal system, and were glad to recognize that which they 
found subsisting. They allowed their subjects, the Latin- 
speaking provincials, to use it ; in some countries they came 
to use it themselves ; parts of it were collected and published 
in such compilations as the Breviarium of the West Gothic 
Alarich the Second and the Lex Romana Burgundionum. At 
the close of the Dark Ages, the study of the original texts 
revived, first in Italy, then in France, England, and Spain. 
Schools of law arose all over Europe. Immense pains were 
spent on the interpretation of the Digest, and it became 
thenceforth, for many generations, the foundation of the edu- 
cation and a principal part of the knowledge of every lawyer 
and publicist. As the mighty fabric of ecclesiastical power 
grew up, it created with the help of Roman materials its own 
body of laws, varied of course by the nature of the subjects, 
and coloured by religious ideas, but substantially Roman 
after all. In this, as in so much else, the Papacy was, to use 
the forcible expression of Hobbes, ' the ghost of the old Em- 
pire, sitting on its tomb and ruling in its name.' And thus, 
in the hands of the very ecclesiastics who forbade its study, 
as hostile to their own pretensions and favourable to those of 
their antagonist, the Emperor, the doctrines of the Civil Law 
obtained a wider range than ever before. As its continued 
existence was one chief cause of the fantastic belief in the 
continued life of the Roman Empire, so that very belief 
became in turn the cause of its ultimate reception, in Ger- 
many, where it had not prevailed, no less than in Italy, 
where it had prevailed continuously, as effective and binding 
law. Being studied by all the educated men, the poets, the 
philosophers, the administrators of the Middle Ages, it 
worked itself by degrees into the thought of Christendom, 
losing the traces of its origin, as it became part of the com- 
mon property of the world. A knowledge, therefore, of what 
it was, and of how it influenced mankind, helps to explain 
much which might otherwise have remained obscure in the 
literature of the Middle Ages and the Renaissance — much 
whose bearing a modern finds it hard to grasp, just because 



INAUGURAL LECTURE 860 

law ho'ids a different place in his conceptions, and because 
he does not realize the power it exerted over untrained and 
uncritical minds. Theology is an instance, but by no means 
the only instance, of a branch of inquiry over which legal 
notions once exercised a sway they have now lost. 

The Middle Ages had received from antiquity, besides the 
Scriptures, only three bodies of literature containing sys- 
tematized thought — the Church Fathers, the philosophy of 
Aristotle, known through translations, and the Roman law. 
The last counted for less than the two former in moulding 
ideas. But it counted for a great deal. 

The history of law and of the evolution of legal concep- 
tions, although in one aspect a professional subject, may also 
claim to be regarded as a branch of general academical study. 
Within the last few years, the application to it of the com- 
parative method of inquiry has given it a new significance 
and interest, has enabled it to teach us much respecting the 
structure of primitive society, and has made it the means of 
illustrating many curious phenomena in the philosophy and 
politics of more recent times. Now to the student of legal 
history a knowledge of Roman Law is indispensable : first, 
because it was an independent system, uninfluenced by any 
preceding one, save to some slight extent by the customs of 
Greek cities, whereas all subsequent European systems have 
been influenced by it ; and secondly, because it alone pre- 
sents an uninterrupted continuity of development, stretching 
over ten centuries from the Twelve Tables to Justinian, and 
later still through the dynasties of Constantinople. No sud- 
den intrusion of a new element, like that caused in England 
by the Norman Conquest, nor even the internal strife which 
altered the form of the Roman state, disturbed that equable 
and self-consistent expansion and amendment of the laws of 
Rome, which the widening relations of the city, as a com- 
mercial, a conquering, a world-embracing community, made 
necessary. Legislative power passed from the patrician 
curies to the popular Assemblies of the nation, from the 
Assemblies to the Senate and the Emperor, but the conduct 
of legislation remained in the hands of an educated profes- 



870 INAUGURAL LECTURE 

sion, and the harmonious evolution of principles was not in- 
terrupted. Nearly all the phenomena which the history of 
law in other countries presents, find their parallel and expla- 
nation in the history of its growth at Rome : nor is the study 
without a practical value for the modern legislator. The 
nature and limits of the jurisdiction of our own Court of 
Chancery are better understood when compared and con- 
trasted with the functions exercised by the Praetor as expo- 
nent of the ius gentium. The codification of Justinian has 
been constantly cited, and occasionally examined, in recent 
discussions respecting the propriety and the methods of digest- 
ing and codifying English law. 

Assuming, without further argument, the claims of the Civil 
Law to be recognized among the general liberal studies of 
the University, I may proceed to consider its special utility 
to the lawyer, and the reasons for giving it a place among the 
studies of the legal faculty. Some zeal has of late been 
shown for the revival of such studies in England and in 
Oxford ; and it will be generally admitted that young lawyers 
ought to be more regularly instructed in the science and art 
of their profession than they are now ; that much of this in- 
struction may be, and ought to be, given at the University ; 
and that, apart altogether from the service to be rendered by 
teaching, it would be a gain to the country if law were culti- 
vated and written upon at the Universities, in the same philo- 
sophical spirit, and with the same systematic fullness, as in 
the schools of Germany. There a great writer is often also 
a great teacher. Such were Savigny and Thibaut ; such was 
that illustrious man whom Heidelberg lost five months ago ' 
— a man whose learning was so vast and well-digested, whose 
expositions of law were so penetrating and luminous, so 
philosophical in method, so eloquent in language, so ani- 
mated in delivery, that to have listened to him was to have 
gained a new conception of the power of oral teaching. 

An obvious ground for cultivating it, and one likely to have 
weight with the practising lawyer, is the immense influence 
it has exerted on the jurisprudence of modern Europe. As 

1 Dr. K. A. von Vangerow. 



INAUGURAL LECTURE 871 

respects England, this influence is matter rather of anti- 
quarian interest than of practical utility. Much of our law, 
especially of our mercantile law, and of that which is admi- 
nistered in courts of equity, may indeed be traced to a Roman 
origin; while the Court of Admiralty, and even to some ex- 
tent the probate and matrimonial Courts which have now 
replaced the ancient ecclesiastical tribunals, owe a more 
direct allegiance to the imperial jurisprudence. In the 
words of Lord Chief Justice Holt, ' Inasmuch as the laws of 
all nations are doubtless raised out of the ruins of the Civil 
Law, as all governments are sprung out of the Roman Empire, 
it must be owned that the principles of our law are borrowed 
from the Civil Law, and therefore grounded upon the same 
reason in many things V But the bulk of English law is so 
vast, requiring so much labour to master it, and that which 
it has borrowed from other systems is now so thoroughly trans- 
formed and Anglicized, that one cannot honestly advise the 
student, on the mere ground that in some departments it has 
drawn freely from Roman sources, to spend time in examin- 
ing those sources, instead of going straight to English text- 
books. It is not so much because English law is like Roman, 
but because it is unlike, that the study is really to be recom- 
mended. Similarities, whatever their historical origin, are 
usually found to rest on that wish to follow reason and to 
secure what is practically convenient, which have moulded 
the rules of all highly finished systems. They need no fur- 
ther explanation. But dissimilarities suggest difficulties. 
Inquiry is provoked ; reflection is stimulated ; ideas emerge 
which may prove fruitful. 

A lawyer who loves and appreciates his subject will hardly 
be content without knowing something of the rules and doc- 
trines which prevail in other nations; and a man in brisk 
practice will find many occasions in which a knowledge of 
foreign or colonial law is of great value to him. Now in the 
acquisition of almost any foreign system of law, a knowledge 
of the outlines of the Civil Law renders the same kind of ser- 
vice which a knowledge of Latin renders in the acquisition 

1 i2 Mod, 482. 



872 INAUGURAL LECTURE 

of one of the Romance languages ; and just as one would ad- 
vise a man who desired to learn French Spanish and Italian 
to begin by learning Latin, so the shortest way to know some- 
thing of German Dutch and French law is to study the prin- 
ciples of the Civil Law, which are a master-key to that of all 
these countries. The House of Lords in Scotch appeal cases, 
the Privy Council in appeals from many of our colonies, as, 
for instance, from Lower Canada, British Guiana, the Cape, 
and Mauritius, administer a modified Roman law. And as 
the doctrines of international law are in their source Roman, 
they can be best understood and applied by one who is fami- 
liar with them in their original form as drawn from that im- 
perial law which, when they first sprang up, was still dimly 
conceived of as extending its authority over all the states of 
Christendom. 

I have placed last what I venture to believe to be the weighti- 
est practical reason for pursuing this study, although, at the 
same time, that reason which it is most difficult to expound 
and establish — its educational and scientific worth as forming 
and strengthening those habits of mind in the possession of 
which a lawyer's excellence consists. In proof of this worth 
it is not sufficient to cite the examples of Germany, France, 
and Scotland, where the education of a legal practitioner is 
based upon the civil law; for the Corpus Juris is in all these 
countries the foundation of their municipal systems, while in 
Scotland and some parts of Germany, it is to some extent 
actually still in force. The reason which we in England 
have for urging that the study of Roman law should precede 
and accompany that of the law of our own country, must be 
sought in a perception of the defects, certainly obvious 
enough, of modern English jurisprudence. Here it is neces- 
sary to distinguish what laymen, and even lawyers, have often 
confounded — defects of substance and defects of form. Now, 
in point of substance, the English law is, with the exception 
of certain provisions of the law of real property, and of the 
law relating to married women — provisions which the progress 
of political change seems likely to remove — no whit inferior 
to any other body of law ; almost always fair and reasonable, 



INAUGURAL LECTURE 873 

conformed to the dictates of good sense, reflecting worthily 
the free and flexible spirit of our political institutions, and 
offering as few opportunities as may be to fraud and oppres- 
sion. Its processes are of course technical, perhaps still too 
technical, and they are sometimes needlessly circuitous 1 ; 
but, as a technical hardship may usually be met by a techni- 
cal remedy, substantial justice seldom fails to be attained. 
With some cumbrousness, our procedure has the merit of 
variety and flexibility; and it is our especial honour to have 
worked out the method of trial by jury with a completeness 
unrivalled elsewhere, and to have alone (for in this, as in 
many other respects, Americans may practically be reckoned 
as Englishmen) succeeded in applying it to large classes of 
civil causes. But when English law is regarded in its formal 
and scientific aspect, as a system, the opinion formed of it 
must be very different. It is, in fact, not so much a system 
as a huge mass of isolated positive rules ; some laid down, 
with little statement of a reason, for the sake of meeting a 
particular case ; some deduced by the judges, though in 
a rather occasional and fragmentary way, from principles 
which were at first dimly and incompletely apprehended; 
some, again, created by statutes which have, especially of 
late years, cut across these pre-existing principles and rules 
in an irregular and reckless way. Just as lines of railway 
have been driven through modern London without regard to 
the old arrangement of the thoroughfares, and have crossed 
and recrossed streets and squares, effacing parts of them till 
perhaps only a house or two is left standing, so Acts of Par- 
liament, drawn up to meet the exigency of the moment, have 
paid no respect to the symmetry, such as it was, of the com- 
mon law, and, instead of attempting to mould and recon- 
struct it, have laid down new positive rules which infringe 
upon, or almost wholly destroy, its ancient principles, by 
removing from their operation large and heterogeneous classes 
of cases. The effect of this has been to make the old prin- 
ciple no longer really a principle, but a positive rule in the 
cases not affected by the statute ; and thus, as the number of 

1 This defect was removed by the Judicature Act of 187^. 



874 INAUGURAL LECTURE 

enactments and positive rules increases, the value of princi- 
ples declines, and the confusion grows every year worse con- 
founded. So it comes, owing partly to the way they have 
been produced, and partly to the way they have been 
amended, that the rules of our law are an aggregate of dicta 
on points of detail — dicta which with difficulty can be re- 
duced to a reasonable number of leading doctrines. For not 
only do the exceptions to a rule frequently outnumber the 
cases which it governs, but it often happens that judicial 
decisions, or the words of an Act, have provided for many 
cases which naturally fall under and suggest a general prin- 
ciple, but have never ventured to enunciate the principle 
itself, which cannot therefore be laid down as being part of 
the binding law. Hence the tendency of an English prac- 
titioner is by no means towards a search for principles : in- 
deed, he becomes absolutely averse to them ; and the charac- 
teristic type of excellence which the profession has delighted 
to honour is the so-called ' case lawyer,' who bears in his 
memory a great stock of particular decisions, from which he 
can, as occasions arise, select that one whose facts most nearly 
approach the individual case upon which he is required to 
argue or advise. Such a practitioner may acquire a sort of 
instinct which will usually keep him right, but may be unable 
to state the general doctrines on which the solution of a class 
of cases depends. 

The strain thus imposed on the memory is such that many 
persons succeed in mastering only some, special department 
of the law; and even our most eminent counsel, men of the 
greatest powers of mind, may be heard to confess that they 
do not pretend to know our law as a whole, but must rest 
content with knowing where to find what they want as they 
may happen to want it. For the same reason our text-books 
are, with few exceptions, not systematic expositions of law, 
but mere heaps of cases from which, by the aid of an index, 
the practitioner must try to pick out a few resembling, or, as 
lawyers say, ' on all-fours with,' that set of circumstances 
whose legal character he is called upon to determine. They 
are, therefore, unfit to be put into the hands of a beginner. 



INAUGURAL LECTURE 875 

The result of all this is to make the process of learning 
English law very slow and somewhat distasteful. Certain 
persons indeed there are who, having no feeling for sym- 
metry, are willing to pick up their knowledge by scraps and 
morsels, and who, so to speak, roll themselves about in cases 
in the hope that bits of legal knowledge will stick. But 
minds of finer temper, minds trained by their University 
studies to ask for a reason, seek out a principle, group things 
together under their natural relations, are disheartened by 
this chaotic state of matters, make slow progress in the study, 
find themselves required to unlearn their best mental habits, 
and sometimes abandon the profession in disgust. I remem- 
ber having been told by a very distinguished and able mem- 
ber of this University 1 , that when he began to read in a con- 
veyancer's chambers he found his previous classical and 
philosophical training, so far from helping him, prove a posi- 
tive hindrance and stumbling-block. This was seen to be an 
evil so long ago as Sir William Blackstone's time. In his 
introductory lecture as Vinerian Professor, delivered here in 
a.d. 1758, he says: — 

' We may appeal to the experience of every sensible lawyer whether 
anything can be more hazardous or discouraging than the usual entrance 
on the study of the law. A raw and unexperienced youth, in the most 
dangerous season of life, is transplanted on a sudden into the midst of 
allurements to pleasure, without any restraint or check but what his own 
prudence can suggest ; with no public direction in what course to pursue 
his inquiries ; no private assistance to remove the distresses and difficul- 
ties which will always embarrass a beginner. In this situation he is ex- 
pected to sequester himself from the world, and by a tedious lonely pro- 
cess to extract the theory of law from a mass of undigested learning ; or 
else, by an assiduous attendance on the courts, to pick up theory and 
practice together, sufficient to qualify him for the ordinary run of busi- 
ness. How little, therefore, is it to be wondered at, when we hear of so 
frequent miscarriages ; that so many gentlemen of bright imaginations 
grow weary of so unpromising a search, and addict themselves wholly to 
amusements, or other less innocent pursuits ; and that so many persons 
of moderate capacity confuse themselves at first setting out, and continue 
ever dark and puzzled during the remainder of their lives. 

' The evident want of some assistance in the rudiments of legal know- 
ledge has given birth to a practice which, if ever it had grown to be gene- 
1 Now Oqoi) one of the Law Lords sitting in the House of Lords. 



876 INAUGURAL LECTURE 

ral, must have proved of extremely pernicious consequence. I mean 
the custom, by some so very warmly recommended, of dropping all libe- 
ral education, as of no use to students in the law, and placing them in 
its stead at the desk of some skilful attorney, in order to initiate them 
early in all the depths of practice, and render them more dexterous in 
the mechanical part of business. A lawyer thus educated to the bar will 
find that he has begun at the wrong end. If practice be the whole he is 
taught, practice must also be the whole he will ever know ; if he be un- 
instructed in the elements and first principles upon which the rule of 
practice is founded, the least variation from established precedents will 
totally distract and bewilder him : ita lex scripta est is the utmost his 
knowledge will arrive at ; he must never aspire to prove, and seldom 
expect to comprehend, any arguments drawn a priori from the spirit of 
the laws and the natural foundations of justice 1 .' 

Blackstone is here founding, on the unfortunate results of 
the usage of his own time, an argument for making the future 
barrister begin with a systematic theoretical study of English 
law. His reasoning will be generally felt to be sound, but 
it does not exclude the further improvement of giving the 
learner some knowledge of the principles of Roman law 
before he addresses himself to English. I shall state some 
grounds for thinking that what might appear the longest way 
round, through Roman law, may really be the shortest way to 
the scientific mastery of our own. 

It is clear that no knowledge of the Roman system can be 
a substitute for a knowledge of the English; but the difficul- 
ties which the English presents to a beginner are such as to 
suggest the utility of a preliminary legal training which may 
render it more comprehensible and less distasteful. Now, 
the conspicuous merit of Roman law is, that it is clear and 
intelligible. It is a system instead of a mere congeries of 
rules and dicta, a system which, although it cannot be ex- 
hausted by the labour of a powerful intellect during a long 
life, may be mastered in its outline and leading principles 
in six or eight months of properly-directed industry. A 
philosophical mind is attracted by its symmetry; the taste is 

1 Although it is the custom of placing a youth (untrained in theory) in an attor- 
ney's office to learn practice which Blackstone is here condemning, the spirit of his 
concluding remarks is almost equally applicable to the present usage of entering a 
conveyancer's or pleader's chambers before one has gained any systematic know- 
ledge (or indeed any knowledge whatever) of the law. 



JX AUGURAL LECTURE 877 

pleased by the graceful propriety of its diction; the learner's 
interest is kept awake by watching the skill and subtlety 
wherewith its technical rules are manipulated and kept in 
harmony with the dictates of equity and common sense. The 
number of dominant conceptions which it is necessary to 
acquire is so small, and these conceptions themselves so 
rational and, so to speak, natural, that it does not take long 
to obtain a general view of the whole, and discern the har- 
monious relation of its parts. The student finds the ethical 
and historical knowledge he has already acquired serviceable 
in this new field. He learns to regard law as a science, 
closely related to ethics, and to be dealt with in a philo- 
sophical spirit. And thus, when he passes on to the study of 
our English law, he finds himself the better able to grapple 
with its bulk and its want of arrangement, since he has 
already mastered the leading conceptions of jurisprudence in 
their concrete (which is, after all, their only serviceable) 
form, and knows how to arrange under appropriate heads the 
positive rules which it will be his business to remember and 
apply. So valuable is this experience, that I dare affirm that 
a youth who spends some eight months in the study of the 
Civil Law, and then proceeds to that of English law, will, 
when at the end of three years he is measured against his 
contemporary who has given exactly the same amount of time 
and pains to English law alone, prove to be not only a better 
jurist, but as good an English lawyer. This is the rather so, 
as that part of English law which the Roman law least helps 
to elucidate is now of much slighter importance than formerly 
— I mean the feudal law of land. A change has passed upon 
us, somewhat similar to that which Cicero saw passing at 
Rome. In his youth, he tells us, he like other pupils of the 
great prudentes was required to learn by heart the contents 
of the Twelve Tables, whereas in his later days it was the 
Praetor's edict that formed the basis of legal training. So 
Coke upon Littleton, which thirty years ago was held forth 
as a sort of Bible to the unfledged lawyer, is now seldom in 
his hands ; his time is given rather to commercial law and to 
the doctrine of trusts and powers, and the principles govern- 



876 INAUGURAL LECTURE 

ing incorporated companies and the relations of directors to 
intending investors and to shareholders — subjects to which 
the leading principles of the Roman law are more capable of 
being profitably applied. 

It is not, however, merely as an introduction to his pro- 
fessional studies that the English lawyer will find the study 
of Roman law profitable : if rightly used it will be a guide 
and a help throughout his whole career. More than anything 
else, it will deliver him from the tendency to deal with law 
in a desultory method and an empirical spirit, by displaying 
to him fixed and general principles underlying the multitude 
of details. It will do for him what the knowledge of some 
foreign language does for the grammarian and the logician, 
in the way of freeing him from that bondage of words to 
which most men are ail their lives subject. Setting him to 
compare the terms and conceptions of another law with those 
of his own, it will enable him to criticize the latter from an 
independent point of view, and so deliver him from the dan- 
ger, common in all professions and to all systems, of mis- 
taking the accidental for the essential, of exalting mere 
technical rules and phrases into necessary and permanent 
distinctions. Further, it may do much to supply, from its 
choice and abundant stores, the defects in English legal ter- 
minology. We are especially ill provided with terms fitted 
to convey the main conceptions of universal jurisprudence; 
and we find the want a serious impediment, not only to legal 
exposition and the conduct of legal argument, but also, as 
has been remarked by a distinguished jurist, now one of the 
ornaments of this University 1 , in the work of practical legis- 
lation. The terminology of the Romans was exact as well as 
copious ; and it has been greatly amplified and improved by 
the labours of modern civilians. As it is, we often draw upon 
the Roman vocabulary, but what we borrow we are apt to use 
loosely, and in a sense different from that of the old Romans 
or of their modern commentators ; whence further confusion. 

There are two capacities 'or mental habits in which the dis- 
tinctive excellence of a legal intellect chiefly consists — the 

1 Sir H. S. Maine. 



IN AUG URAL LECTURE 879 

power of applying general principles to concrete cases, and 
the power of enunciating a legal proposition with clearness 
and precision. Towards the formation of both of these the 
writings of the Roman jurists supply more aid than do those 
of their modern English rivals. The conspicuous merit of 
the Roman lawyer was his command of principles, and the 
skill with which he manipulated the rules of an originally 
very technical system, so as, without any loss of consistency 
or ' elegance,' to avoid the inconveniences which an adhe- 
rence to technical strictness must often produce. As Savigny 
puts it, 'In our science, all results depend on the possession 
of leading principles, and it is precisely upon this possession 
that the greatness of the Roman jurists is based. The con- 
ceptions and maxims of their science appear to them not as 
if created by their own will ; they are actual beings, with 
whose existence and genealogy they have become acquainted 
from long and familiar intercourse. Hence their whole 
course of proceeding has a certainty which is found nowhere 
else out of mathematics, and it is no exaggeration to say that 
they calculate with their ideas. This method is nowise the 
exclusive property of one or a few great authors : rather is it 
the common inheritance of all ; and although the power of 
applying it is divided among them in very unequal measure, 
still the method itself is in all of them the same. ... If 
they have a case to decide upon, they set out from the most 
vivid perception of it, and we see before our eyes the origin 
and development of the whole affair in all its phases. It is 
as if this particular case was the starting-point whence the 
whole science was to be explored. Hence with them theory 
and practice are really not distinct; their theory is so tho- 
roughly worked out as to be fit for immediate application, and 
their practice is uniformly ennobled by scientific treatment. 
In every principle they see an instance of its application ; in 
every case, the rule whereby it is determined : and in the 
facility with which they pass from the universal to the par- 
ticular, and the particular to the universal, their mastery is 
incontestable '.' 

1 Vom Beruf unserer Zeit fiir die Gesetzgehung unci Rechtsivisse?ischaft, c. 4. 



880 INAUGURAL LECTURE 

Now every legal opinion, argument, and judgement chiefly 
turns on the application of known principles or rules of law 
to facts ; and this either by way of fitting the law to the facts 
— that is, of expounding the nature, meaning, and limits of 
a principle in such wise as to make it appear to cover the 
facts proved ; or conversely by way of fitting the facts to the 
law, that is to say, of setting forth the rule or principle, as 
admitted, and then of so stating the substantial result of the 
facts taken as a whole, as to make it appear that the case 
falls under this rule as already given. In this process the 
Roman jurists shone preeminent. English judges, certainly 
from no want of learning or acumen, but rather from a sort of 
caution, or from a traditional reluctance to deliver an opinion 
going any further than may be necessary, have generally been 
unwilling to formulate principles, preferring, where they 
could, to dilate on the special circumstances of the case, and 
base their decision thereon ; and the consequence is to be 
seen in the prolixity of our Reports, and the uncertainty of 
much of the law contained in them. The labour of reading 
English cases is great in proportion to the quantity of posi- 
tive law they embody; and their philosophical worth not 
commensurate with the genius and industry bestowed upon 
them by both bar and bench. The cases, if one may so call 
them, which we find in the Roman jurists give more law and 
more real intellectual training in a much smaller compass. 
They are often imaginary, invented to show the application 
of a rule, and are therefore short and clear, enforcing theii 
principle with a directness which makes it easily apprehended 
and remembered. In reading them we seem to learn better 
than anywhere else how principles should be dealt with. 

In the matter of legal expression the superiority of the 
Romans is scarcely less marked. The power of stating a 
proposition of law in comprehensive and exact terms, wide 
enough to cover all cases contemplated and yet precise enough 
to exclude cases more or less similar to which the rule is not 
intended to apply, is valuable to the text-writer and quite 
indispensable to the framer of statutes. Unfortunately it is 
one of which our statute-book bears few traces. Now the 



INAUGURAL LECTURE 881 

legal language of the Romans is a model of terseness, per- 
spicuity, and precision, and from a study of it, even allowing 
for the difference between the structure of the two languages, 
the English draftsman may derive many valuable suggestions. 

Over and above the specific benefits enumerated, it must 
be added that a study of the Roman law would not merely 
tend to produce, but must necessarily precede, any extended 
healthy intercourse between our jurists and those of the rest 
of Europe, any participation by us in the general advance- 
ment of juridical science. ' England,' said an eminent con- 
tinental jurist, surveying the progress made in his department, 
' England sleeps for ever ' : and she sleeps because her 
lawyers have allowed themselves to become as completely 
isolated as though we were living in and legislating for a 
planet of our own. Certainly, when one remembers how in 
other branches of inquiry each country depends upon its 
neighbours, how meagre would be our scholarship, our ethics, 
our history, our criticism — never to speak of medicine and 
the whole circle of the sciences of nature — if in each of these 
subjects we trusted to our own efforts only — it does seem 
strange that in the matter of law we should be content to 
draw nothing from the labours of other nations. As the facts 
law deals with are in the main the same in all civilized coun- 
tries, and the substance of its leading conceptions virtually 
identical, there must clearly be much for us to learn from 
other highly cultivated systems, and it is only our ignorance 
of the common legal vocabulary of Europe that keeps us from 
so learning. The habit, however, has grown so strong that 
we do not even care to profit by the experience of a country 
which speaks our own legal language — the United States — 
where many problems have been handled by the Courts and 
many experiments have been tried by the legislatures which 
are full of instruction for us \ 

This argument, being directed to show that the study of the 
Civil Law will help to make English law more of a system 
and a science than it k now, and to train the individual 

1 Cases decided in the United States are more frequently cited in English Courts 
now (1901) than they were in 1871. 
56 



882 INAUGURAL LECTURE 

lawyer in more philosophical habits of mind, proceeds upon 
the assumption that law ought to be a science and lawyers 
philosophical. To prove the truth of this assumption would 
involve a discussion of the relations of theory and practice 
generally ; and in a University, at least, no such proof will 
be demanded. Science, like wisdom, is justified of all her 
children; and those who, in the teeth of what we have seen 
during the last eight months ', persist in holding theory to be 
a hindrance to practice, would, quite consistently, refuse to 
be convinced by any such general considerations as those 
which determine academical opinion. Without entering, 
however, on this higher ground, I may be permitted to men- 
tion two practical reasons for desiring to see our law treated 
as an organic and harmonized system of rules. One of these 
is the direct gain which the whole community would derive 
from a simplification of its form. Owing to the way in which 
English statutes are drawn, nearly every amendment of the 
law makes it more complicated and obscure than it was 
before. A new Act seldom repeals a preceding Act or Acts 
on the same subject as a whole : it abolishes some of their 
provisions, incorporates others, and modifies the rest. In 
dealing with a rule of the common law, instead of expunging 
the rule altogether, or laying down a new principle by which 
it is to be controlled, it usually establishes a series of excep- 
tions in a manner so seemingly arbitrary as to make it very 
difficult to determine, when a new case arises, whether or no 
it was within the contemplation of the Act. The Married 
Women's Property Act of last session is an instance in point ". 
Similarly, vast branches of our law, such as that which relates 
to public health and to the regulation of mines and manufac- 
tures, are suffered to remain in a state of hopeless confusion 
— Acts fringed with decisions piled upon other Acts and their 
decisions, till it becomes impossible, without a long and 
painful research, to say what is law and what is not *. This 

1 The reference was to the war, just ending when this lecture was delivered, 
between Germany and France. 

a This Act caused so much trouble that it had to be amended and the law recast 
by the Married Women's Property Act of 1876. 

3 A marked improvement has, however, taken place since the establishment of 



INAUGURAL LECTURE 883 

wretched state of things, which makes a resort to the Courts 
far more costly, and its issue far more uncertain than it need 
be, though partly due to existing parliamentary arrangements, 
is also in great measure due to the want of that feeling for 
the symmetry and simplicity of the law which a scientific 
conception of it would be certain to produce in the profes- 
sion. The public, which feels the evil, is powerless to 
remedy it; while those members of the profession who have 
the power are deterred from the necessary efforts, not, as is 
commonly supposed, by the mean notion that it is their in- 
terest to keep their art a mystery, but partly by long habit, 
which has made them indifferent to the beauty of order, 
partly by the want of that scientific training on which the 
success of amending legislation depends. 

The second benefit is the reflex effect upon the legal pro- 
fession of a higher conception of the studies to which it de- 
votes its labours. The complaint is often heard that men 
of literary culture and polished taste rise more seldom than 
formerly to the highest places at the bar and on the bench ; 
that it is now private connexions rather than the finer gifts of 
intellect and character which open the path to professional 
success. If this be so, it is surely in great measure because 
our system of legal education gives too little scope to these 
nobler qualities, and turns them to no account in directing 
the studies of the aspirant. The life of a lawyer, tedious 
ana distasteful in some of its details, would be more enjoy- 
able if his occupation called out, as it ought to do, the high- 
est faculties of his mind; and the tone of the profession, 
which will sooner or later be threatened here by the tempta- 
tions which have begun to threaten it elsewhere \ will be best 
maintained in purity by a sense of the dignity of the subject 
it deals with as a department of philosophical inquiry. It is 

the office of the Parliamentary Counsel a few years ago. Many Bills, however, 
including all those brought in by private members, do not pass through this office, 
and even those which come from it suffer in point of form in their passage through 
Parliament. Since 1871, much has been done in the way of consolidating the Sta- 
tute law. See Essay XIV, ante. 

1 The reference was to the scandals which had recently arisen in some of the 
State Courts in the United States. These have now (1901) been almost entirely 
removed. 



884 INAUGURAL LECTURE 

scarcely possible that a corrupt administration of justice can 
coexist with an enthusiasm for the abstract propriety and 
elegance of law as a science, such as existed among the great 
jurists of Rome. 

I am sensible that in this enumeration of the advantages of 
the study we have been considering, I may probably be falling 
into the common error of those who having a theme allotted 
them, try to bring more out of it than there is in it. To cor- 
rect such a mistake, let it be frankly admitted that Roman 
law, though indispensable to the philosophical jurist, is not 
so to the practitioner ; and that no knowledge of it can make 
up to him for the neglect of his own law. Let it also be con- 
ceded that it is not a subject ever likely to hold a front rank 
among those which awaken the ardour of our academic youth. 
It wants that charm of incompleteness, of unexhausted possi- 
bilities of discovery, which fascinates us in the sciences of 
nature. It does not, like metaphysics, set us face to face 
with the most stimulating problems of thought and life; nor 
can it, like history, dazzle the imagination and stir the emo- 
tions, by leading us through a long gallery of striking scenes 
and characters. Yet the study is one which pleases and sat- 
isfies as well as instructs; for it is at once, and that in the 
healthiest way, theoretical and practical, excellently philo- 
sophical in its methods, yet never quitting the firm ground 
of reality. Its materials are contained in the writings of 
men, the purity and loftiness of whose ethical tone were 
scarcely surpassed by the brilliance of their constructive 
genius. It is perhaps the most perfect example which the 
range of human effort presents of the application of a body 
of abstract principles to the complex facts of life and society. 
To quote once more from the most famous of modern jurists : 
— ' The study of Law,' says Savigny, ' is of its very nature ex- 
posed to a double danger : that of soaring through theory 
unto the empty abstractions of z fancied law of nature, and 
that of sinking through practice into a soulless unsatisfying 
handicraft. Roman law, if we use it aright, provides a cer- 
tain remedy against both dangers. It holds us fast upon the 
ground of a living reality; it binds our juristic thought on 



INAUGURAL LECTURE 885 

the one side to a magnificent past, on the other, to the legal 
life of existing foreign nations, with whom we are thereby 
brought into a connexion wholesome both for them and for 
ourselves '.' 

Standing midway between those classical and historical 
studies which belong to a general liberal education, and those 
purely professional studies which form the first stage ot active 
life, it is especially fitted to lead men from the one to the 
other, and show them how to turn to account in the latter 
the ideas and capacities which the former has given them. 
But although this is a strong reaspn why the University of 
Oxford should undertake to recognize and promote the study, 
it is not the only or the chief reason. Even more important 
than the function of an University in education, is the 
scarcely separable function of dealing with every department 
of human activity in the abstract, investigating its principles 
and developing its rules in their philosophical coherence. 
We are all too apt, in the hurry of life and the pressure of its 
trivial necessities, to lose sight of that which is universal and 
permanent — to forget that what we are pursuing as a trade is 
the subject of a science, and has, as such, its greatness and 
its perfectibility. The ideal is not far from us, but we catch 
only transient glimpses of it ; and of those who continue in 
maturer life to cherish the belief in its worth, the most con- 
ceive of it in relation to their inner life only, and look on 
their action in the world without as something which belongs 
to another and a meaner sphere. The University is appointed 
to correct this failing — to link the present, in which things 
seem petty, to the past which clothes them with a mellower 
light — to ennoble practice by a constant recurrence to theory 
— to show that intellectually as well as ethically there is 
nothing common or vulgar, nothing which may not and ought 
not to be considered as within the domain of Philosophy, 
who, the more perfect she becomes, sees more clearly that 
which is great in that which is the least. In undertaking, 
therefore, not only to educate in the ordinary liberal studies, 
but also to deal in a broad and lofty spirit with such large 

1 Preface to vol. iii. of the System des heutigen riimischen RechtM. 



886 INAUGURAL LECTURE 

practical topics as this of law, the English Universities will 
in a new way justify their possession of that wealth and ex- 
ternal splendour which they alone out of the great mediaeval 
sisterhood have been privileged to retain. They will asso- 
ciate themselves more closely with the life of the nation, and 
confirm the reverence with which it still regards them; nor 
is it idle to add that in thus enlarging the scope of their 
activity, they will be closely following and worthily main- 
taining the traditions of their glorious past. 



XVIII 

VALEDICTORY LECTURE* 

LEGAL STUDIES IN 
THE UNIVERSITY OF OXFORD 

Twenty-three years have passed since I entered on the 
duties of the Chair of Civil Law in this University : and 
to-day, in obedience to precedents of high authority, I come 
to say some parting words suggested by the experience of 
those years. They have been years full of experience for us 
all : and it may be not unprofitable that I should note the 
changes they have brought and endeavour to estimate the posi- 
tion which legal studies, and especially the study of the Civil 
Law, have now reached in the University and in the country. 

Those changes have been many and momentous. Since 
1870 the University has nearly doubled the number of its 
undergraduates and has greatly increased the number of its 
teachers. It draws students much more largely from the less 
wealthy classes of the people. A new college has been 
founded, and risen to prosperity : an old one has been rc- 
founded and enlarged. Two colleges for women have 
sprung up and taken firm root. Theological tests have been 
abolished : persons not belonging to the Church of England 
as by law established have begun to resort freely to Oxford : 
two theological faculties belonging to unestablished religious 
bodies have come to dwell in her midst, and have received 
a courteous welcome. Nor have any of the unfortunate con- 

1 Delivered on resigning the Regius Professorship of Civil Law at Oxford, 
June 10, 1S93. 



888 VALEDICTORY LECTURE 

sequences predicted as likely to follow from the admission of 
Nonconformists been actually experienced, for there has been 
a diminution of theological controversy, a growing sense of 
friendliness and sympathy among Christians, a more assured 
peace in the minds of our students. 

The examination system has been remodelled, with a 
regrettable but perhaps inevitable increase of complexity, as 
well as enlarged by the inclusion of new studies. The Uni- 
versity and the Colleges have been dealt with by Parliament 
and by an Executive Commission : and the serious conse- 
quent evils have been not wholly uncompensated by gains. 
Oxford has undertaken many new kinds of work. She pro- 
vides University Examinations for Women, and sends zealous 
young lecturers everywhere through England to bring teaching 
of an academic type within the reach of the people. 

As regards Law, while the degree of Doctor of Civil Law 
has become a true distinction by the requirement of a thesis 
of substantial merit instead of the former purely formal exer- 
cise, the B.C.L. examination (theretofore scarcely serious) 
was made by a statute of 1872 a reality : the standard both of 
honours and of the pass degree has steadily risen, and this 
rise has been accompanied by an increase of candidates. 
That examination is probably now, I do not say the most 
severe test of legal attainments, but the best arranged and 
most practically useful law examination in England. In the 
years preceding 1870 there were seldom more than two or 
three entrants for this examination, almost absurdly easy as 
it then was. There are now usually upwards of twenty and 
sometimes twenty-five. Similarly the number of candidates 
in the School of Jurisprudence, by which candidates can 
obtain the degree of B.A., has grown and the quality of the 
work has improved. 

In 1868 there were only three Chairs in the Faculty of Law : 
those of Civil Law, Common Law, and International Law, 
besides the temporary Vinerian Readership; and of these 
that of Common Law was virtually in abeyance. In 1870 the 
work of the Corpus Professorship of Jurisprudence began with 
the lectures of an illustrious writer whose fame two Universi- 



VALEDICTORY LECTURE 889 

ties dispute, for if Cambridge reared him, Oxford gave him 
the occasion for teaching, Sir Henry Maine. In 1878 the 
Readership in Indian Law, and in 1881 that in Roman Law, 
was founded and the opportunity taken of placing in it the 
zeal and learning of a German civilian — Dr. Erwin Gruebei 
— whose lectures have proved most helpful. In 1882 the 
Vinerian Chair of Common Law became (as we trust it will 
ever continue) a working chair by the choice of another dis- 
tinguished man whose powers, always admired by his friends, 
are now recognized over the English-speaking world, and to 
whom belongs the rare honour of having devoted those powers 
to the service of his political allies in a great and burning 
controversy without impairing the respect which all parties 
feel for the depth and soundness of his constitutional lore. 

Thus there are now seven working professorships : and to 
these we must add, in estimating the teaching force which 
the University possesses, the lectures of another distinguished 
writer who may be reckoned as virtually a law professor — the 
Warden of All Souls : and of more than ten College lecturers, 
who serve the University as well as their respective Colleges, 
with recognized efficiency. 

Thus, upon a review of recent years, we may say that as the 
whole University has grown and expanded, so has also this 
side of her activity, and that which was once a dry river-bed, 
or presented, like a South African river, only a few scattered 
pools of stagnant water, has now become a wide and fertiliz- 
ing stream. 

That serious deficiencies exist I am well aware : I shall 
presently advert to them and to the steps that may be taken 
to remove them. For the moment, however, I am noting 
progress actually made and gains actually secured. Among 
these may be reckoned the assured position which the study 
of the Roman Law now enjoys. 

Though this was the first subject recorded to have been 
taught in Oxford, for one of the earliest notices of the Uni- 
versity is to be found in the sentence ' Magister Vacarius in 
Oxenefordia legem (sc. Romanam) docuit,' and though from 
his time (the reign of King Stephen) down till the seven- 



890 VALEDICTORY LECTURE 

teenth century it held a rank second only to that of theology, 
it had within the last hundred years virtually died out of the 
University, and this chair, founded by King Henry VIII in 
1546, and occupied in the time of King James I by Alberico 
Gentili, had become a sinecure. A few law degrees no doubt 
continued to be given, but they carried no evidence of know- 
ledge. The revival begins with the substitution in 1852 of an 
examination (albeit a very slight one) for the old formal exer- 
cises for the degree of B.C.L., and the creation in 1853 of 
the Law and Modern History School (in which the Institutes 
of Justinian were made a subject of examination). That 
School was in 1872 divided into the present two Schools of 
Modern History and of Law, in the latter of which Roman 
Law received a more important place. Till 1870, however, 
there was scarcely any teaching, and what little did exist in 
the colleges was confined to commenting upon the solitary 
book required for the examination. No one had lectured on 
the Digest ; no one had treated the history of the subject. 
This was part of that remarkable isolation of England from 
the general current of European legal thought and practice 
which was due partly to the resistance to the encroachments 
of the Canon Law, first of the barons in the thirteenth cen- 
tury, and again of the Parliament under Richard II, partly to 
the great religious breach of the sixteenth century, an isola- 
tion once politically fortunate, for it helped to develop the 
free spirit of the common law, but in our days, when the old 
dangers have vanished, a circumstance to be regretted and 
removed. Among the modes of removing it, the study of the 
Civil Law is not the least important. That study may now 
be deemed to have struck here in Oxford deep and tenacious 
roots. Both in our examinations and in our teaching it holds 
a place equal in dignity to English Law, though doubtless of 
narrower compass. It attracts in fully as large a measure the 
interest of the more intelligent among our students, and it 
can hardly be doubted that the excellence of the Law School 
in the future will largely depend upon its maintenance as 
a main element in both teaching and examination. 

Its practical utility to the English lawyer is one of the 



VA.LBMGTQ&S LECTURE 891 

points on which you may expect the results of my experience 
to be stated; for it is a point upon which attention must be 
constantly fixed, and I have had opportunities of studying it 
amid the din and dust of forensic practice in London no less 
than in the cloistered seclusion of Oxford. 

In the Inaugural Lecture which I delivered here in 1871, 
an attempt was made to treat this subject. It was there 
pointed out that the utilities of the Civil Law to Englishmen 
might be reduced to three heads. One was its connexion 
with the main stream of the world's history from the time of 
Pyrrhus, the first formidable antagonist from non-Italian soil 
whom Rome overthrew, to that of Muhamad, by whose first 
successors the East was torn from her grasp ; and its influ- 
ence, less conspicuous, but still considerable, upon the growth 
of opinion and the development of institutions ever since. 
This is an aspect of the subject which, since it belongs rather 
to the historian than the lawyer, I shall not pursue further 
to-day, though subsequent reflection leads me to believe that 
its importance can hardly be overrated. The second utility 
was to be found in the fact that Roman Law is the substratum 
of some branches of English Law, directly of the law admini- 
stered in the Probate and Admiralty Division of the High 
Court of Justice, and indirectly of a good deal administered 
in the Chancery Division, in the further fact that it is the 
actual law of some of our colonies from which appeals come 
to the Privy Council, as well as the foundation of the law of 
Scotland whence appeals come to the House of Lords, and in 
the command which it gives of the law of modern continental 
Europe, since it is the basis of the systems that prevail in all 
those countries, and its knowledge is a sort of master-key to 
each and every of them. These circumstances — so I then 
argued — make it practically serviceable to the practitioner, 
and justify a man bent on professional success in devoting 
some time to its study. The third utility was to be found in 
its educational value, as forming the mind and training the 
aptitudes of the student devoting himself either to the theory 
or the practice of English Law. On these latter two of the 
above-mentioned three points it is proper to say a few words. 



892 VALEDICTORY LECTURE 

An observation extending over twenty-two years leads me 
to lay less weight than I laid in 187 1 on the direct profes- 
sional gain, in the Avay of securing practice at the bar, to be 
expected from a knowledge of Roman Law. Sometimes no 
doubt a man may find such knowledge directly helpful in 
writing opinions (especially if points of Scotch or French or 
German or Roman Dutch law arise), or in arguing before 
a Court. Once in addressing the Hcuse of Lords in a Scotch 
Appeal I discovered a pretext for quoting the Digest, which 
that august body received with grave approval, as not unbefit- 
ting the large survey they are wont to take of every matter 
that comes before them. But instances of this kind are rare 
in ordinary practice. It would be unbecoming to dilate upon 
this aspect of the question, for a University is the last place 
in which the worth of knowledge ought to be measured by its 
merely gainful utility, or where our studious youth ought to 
be led to set their hearts upon immediate practical success. 
Still, if one is asked to deal with the point upon a hard utili- 
tarian basis, I cannot allege that the advantage to be expected 
from the possession of this acquirement does much more than 
counterbalance the impression which still prevails in the 
' other branch of the profession,' that it is a little uncanny 
for a barrister to be known for anything except his knowledge 
of the English Law. Things might fall out differently for 
the young civilian to whom a judicious firm of solicitors 
vouchsafed a chance of getting into Canadian Appeal busi- 
ness or Admiralty business. But in such a world as the pre- 
sent, and more particularly at the bar, one cannot await 
chances or shape one's course with a view to them ; one must 
seize those that come and float onwards with the tide. The 
ambitious junior may desire to be employed in subtle ques- 
tions of insurance or company law, but if briefs are offered 
him at the Old Bailey or even in the Divorce Court, he will 
probably deem it wise to accept them, and to wait till his 
position is assured before he begins to pick and choose among 
the business which clients send. In the long run, no doubt, 
a man who knows Roman Law will find many cases in which, 
when he has attained a front rank in the profession, he can 



VALEDICTORY LECTURE 893 

profit by that knowledge. But the main thing for the prac- 
titioner is to get a start ; and it is not certain that any one 
will get this start sooner by being as good a civilian as 
Oxford can make him. 

This may be deemed a somewhat sordid aspect of the mat- 
ter; so let me hasten to correct any possible misapprehen- 
sion by adding that as respects the third head of utility — that 
of the benefit to a student's mind which training in Roman 
Law gives, I can dwell upon it with a confidence deepened 
by the experience of every year. Far be it from me to dispa- 
rage the law of England as it was disparaged by the eager 
reformers of seventy or even of fifty years ago, impatient of 
the defects, many of them removed since their days, which 
then marred its noble proportions. It is a system worthy of 
all admiration for its humane spirit, for the sense of civic 
equality and personal freedom which pervades it, for its elas- 
tic power of adapting its provisions to the needs of the great 
communities that live by it, not here only but beyond the 
Atlantic and beneath the Southern Cross. Its faults lie not 
in its substance but in the form which the historical con- 
ditions of its growth have given to it. It is a system ex- 
tremely hard to expound and hard to master. So vast is it 
and so complicated, so much are its leading principles ob- 
scured by the way in which they have been stated, scattered 
here and there through cases reported in a chronological 
order, which is the perfection of disorder, so much have 
many of its main doctrines been cut across and (so to speak) 
dislocated by modern Statutes, that it presents itself to the 
learner as a most arduous study, a study indeed which only 
a few carry so far as to make themselves masters cf the whole 
body of our working rules. Roman Law, on the other hand, 
is not only simpler, since it wants those differences between 
real and personal property, and between legal and equitable 
rights to which so much of our English complexity is due, 
but more limited in its range, large modern departments, like 
those of company law and insurance law and negotiable in- 
struments, being absent. It is therefore a subject the whole 
of which the student can more easily bring under his eye, 



894 VALEDICTORY LECTURE 

seeing the various parts in their relation to one another. 
What is of still higher import, the Roman Law is symmetri- 
cal and coherent. Each part not only has, but displays, its 
organic relation with every other part. The original sources 
in which we possess it are cf moderate bulk, not larger 
than the English Law Reports of the last four or five years, 
and not a two-hundredth part of the total volume of our 
Reports. 

Less than one-fourth of these writings is now of practical 
consequence, for the remainder, though interesting histori- 
cally, deal with matters not significant to the modern lawyer. 
But the fraction which still concerns us is of the highest pos- 
sible merit. In it one may find something of value upon 
almost every principle and general legal doctrine with which 
a jurist has to deal. The legal conceptions set forth are 
those upon which all subsequent law has been based ; and 
nearly all of them find their place in our own system, which 
they have largely contributed to mould. Two of the Roman 
text-books deserve special mention. The Institutes of Gaius 
is a model of vigorous precision and lucidity, an elementary 
treatise to which we have nothing comparable. The Digest 
of the Emperor Justinian, containing short extracts from 
a number of the most eminent legal writers of earlier times, 
has excited the admiration of all succeeding generations by 
the concise, delicate, and philosophical way in which princi- 
ples are set forth and points of detail investigated. Its con- 
tents are philosophical, not in the sense of being abstract, 
but in the firm grasp of principles, and the refined exactitude 
with which every principle is applied. No rules could bet- 
ter conform to the three canons of good law, that it should 
be definite, self-consistent, and delicately adapted to the 
practical needs of society. No study can be better fitted to 
put a fine edge upon the mind, or to form in it the habit of 
clear logical thinking. 

In England we have nothing similar, and although the 
study of case law may be made, and has sometimes been 
made in the hands of a skilful teacher (such as Mr. C. C. 
Langdell, of the Harvard University Law School), as good 



VALEDICTORY LECTURE 895 

a training in subtlety and exactness as the Roman Law or 
indeed as the scholastic logic of the Middle Ages, the im- 
mense bulk of our cases makes it difficult to pursue such a 
method over the whole field which a learner ought to cover. 

'Nevertheless,' some one may say, 'even if the merits 
claimed for the Roman system be admitted, it is not our 
English system, and you are doubling the learner's labour. 
Why should he add to the time and toil that the study of 
English Law needs, the time and toil, less though it be, 
needed for mastering the Roman ? Why attempt both, when 
one alone is, on your own showing, so arduous ? ' 

The answer is that the learner will make quite as rapid 
progress with English Law if he has begun with Roman as if 
he proceeds to break his teeth from the first upon the hard 
nuts of our own system. Twenty-one years ago I ventured to 
say this here and I venture now to repeat it with fuller con- 
fidence. Two men of equal ability and diligence start to- 
gether after taking their B.A. degree. One gives a year to 
Roman Law and the two next to English. The other devotes 
to English the whole three years. At the end of the three 
years the first will know as much English Law as the second. 
He may not have covered so much ground or got on his tongue 
the names of so many cases, but he will know what he does 
know — nor will it be much less in quantity — more thoroughly 
and rationally. The explanation is twofold. In learning 
Roman Law, one learns the elements of law in general, and 
therefore of English Law also, these elements being more 
easily learnt from Roman sources, than they could be in the 
form they have taken among ourselves. And, secondly, in 
learning Roman Law one obtains a means of testing one's 
comprehension of the real meaning of English terms and the 
nature and compass of English rules, which deepens and 
strengthens the learner's hold upon his knowledge. The 
main difficulty which besets students till they have had a 
good deal of actual practice is to turn into the concrete the 
rules they have learnt in the abstract, or as a Roman lawyer 
says, Leges scire non est verba earum tenere sed vim atque 
potestatem. The study of reported cases is a valuable aid in 



896 VALEDICTORY LECTURE 

grasping the practical application of rules, but cases are com- 
plicated by many details extraneous to the principle. When, 
however, a man has so mastered the main outlines of Roman 
Law as to be familiar with its conceptions and understand the 
application of its leading rules, he is naturally and almost 
necessarily led in his study of English Law to compare the 
conceptions and rules he finds there. ELs text-book tells 
him, for instance, that the English rule regarding the passing 
of the ownership of an object sold, is such and such. What 
is the Roman rule ? If the two rules agree, he remembers 
the English better. If they vary, he is led to ask why; and 
he obtains a juster view of the origin, bearings, and range of 
the English rule from perceiving wherein it differs from the 
Roman. If any one thinks there is a risk of his confounding 
the two, and becoming muddled between them, I can only 
say that I have never known this happen, partly, perhaps, 
because in dealing with Roman Law one thinks in Latin — a 
good thing to do — and expresses in its technical terms the 
result one arrives at. On the contrary, the student gets a 
clearer and sharper view of the grounds of every doctrine, 
and of its precise compass, than he could get from studying 
either system by itself. It is az when in studying a foreign 
language one translates constantly backwards and forwards 
into one's own, and obtains thereby both a finer perception 
of the idioms of both, and a more exact comprehension of 
the substantial meaning of every sentence that is so trans- 
lated. 

I may be reminded that the advantage here claimed does 
not apply to all departments of Roman Law alike, but to 
those only which cover the same field as our own Law. The 
remark is rme, and draws with it a practical lesson. The 
subject has two aspects. Besides its intrinsic scientific inter- 
est as a vast and harmonious system, it has a historical aspect 
for the scholar and the student of institutions : it has a prac- 
tical or professional aspect for the lawyer. Different parts 
of it are especially interesting to one or other of these classes. 
Much of the law of persons, of crimes, and of procedure, 
while it engages the curiosity of the scholar or historian, is 



VALEDICTORY LECTURE 897 

too remote from modern conditions of life to attract, or to 
profit, the jurist of to-day. What he will chiefly value are 
the parts that deal with the law of Property, including Inheri- 
tance (though even in this there is a good deal whose in- 
terest is now merely historical) and of Obligations, together 
with some parts of the law of persons, such as marriage and 
guardianship. These are the parts on which the teacher 
should here in England expend his efforts, for it is in these 
that the comparison with English Law is chiefly instructive. 
He should lead the student along a path from which the pa 
rallel territories of English Law are in full view, and carry 
him constantly to and fro across the border. So if I may, at 
the risk of seeming to transgress a Roman rule, give a legacy 
to an uncertain person, I will bequeath to my successor, who- 
ever he may be, this maxim as the best practical result of my 
experience — that Roman Law must always be so taught as to 
be brought into the closest and most constant relation with 
English Law, since it will thereby become not only more 
helpful but more enjoyable to both learner and teacher. It 
ought to be treated as a practical working system, full of 
life, not only because it is preserved to us in lifelike detail, 
but also because it is still actually in force as the operative 
law of some countries, full therefore of direct instruction 
and suggestion for ourselves, capable of being used to enlarge 
English conceptions or indicate useful modifications of Eng- 
lish rules. 

In discoursing on it, if I may in this expiring swan song 
refer to my own experience, I have usually passed by what 
may be called its antiquarian aspects, not from any want of 
interest in them, but because the object of quickening the 
interest and training the intellect of the cupida legum inventus 
seemed more urgent. It has been rather in the public lec- 
tures delivered from time to time before the University, that 
I have endeavoured to develop and illustrate the wider his- 
torical relations of the law of Rome, and to connect it, some- 
times in the letter, sometimes in the spirit, not only with the 
history of the Empire and the Church, but also with the 
problems of abstract jurisprudence, with political ideas and 
57 



898 VALEDICTORY LECTURE 

constitutional forms, with the legal institutions of peoples 
remote in time, like the primitive Icelanders, or dissimilar 
in race and habits, like the Musulmans of the contemporary 
East, with current questions on which Roman experience 
sheds light, such as the law of Marriage and Divorce, with 
the enterprises of modern law-makers, like the Legislatures of 
the States of North America or the rulers of British India. 
Sometimes these lectures may seem to have strayed beyond 
the strict limits of the Chair. I have then fallen back on 
the ancient adage Roma caput mundi regit orbis frena rotundi, 
and have feigned for the Imperial law a continuance of its 
oecumenical authority. The Roman law is indeed still 
worldwide, for it represents the whilom unity of civilized 
mankind. There is not a problem of jurisprudence which it 
does not touch: there is scarcely a corner of political science 
on which its light has not fallen. 

In the opportunities for such placing the two systems side 
by side lies the one great advantage which English and Anglo- 
American civilians enjoy as compared with their continental 
brethren. To the latter the Roman Law is the basis — in 
some countries it may almost be called the modified sub- 
stance — of the current law. To us it is a parallel system 
with which comparisons can be made. These comparisons 
are eminently fertile in elucidation of the past condition of 
both systems, and in criticism of their present condition. 
To no scholars ought the early history of the Roman Law to 
be at once so easily comprehensible and so instructive as 
to us in England, because the history of our own law is full 
of beautiful analogies therewith. So no jurists are better 
able to estimate the value of Roman doctrines on many prin- 
ciples of contractual law, because our system has developed 
independently, and illustrates the Roman equally where it 
differs and where it agrees. We in England cannot pretend 
to rival the work which the great Germans of this century, 
men like Savigny and Vangerow, Ihering and Windscheid and 
Mommsen, have done for the investigation and exposition of 
Roman jurisprudence and legal history. But our detached 
position ought to give us a perspective and a freshness of 



VALEDICTORY LECTURE 800 

critical insight, perhaps even a means of comprehending 
things by reading our own experience into them, which con- 
tinental scholars sometimes lack; and of that experience, 
we may trust, due use will some day be made. For I cannot 
doubt, looking not only to the progress of the study in Eng- 
land, but to its rapid and solid growth in the Universities of 
America, that the study of the Roman Law, once so nearly 
extinct among us, is now destined to shine with a steady 
light for generations to come. 

I had intended to review, in connexion with the progress 
of our own law school, the changes which have passed on the 
aspects of legal science in England within the last thirty 
years. Two among them give cause for regret, the decline 
of interest in projects for simplifying and consolidating the 
law, and the growing despondency wherewith attempts to 
amend our legal procedure are now regarded, a despondency 
probably due to the imperfect success which has attended 
those Judicature Acts from which so much was hoped twenty 
years ago. There are few countries in which so small a propor- 
tion of the men engaged in professional work show an active 
interest in legal reforms. Against these grounds of dis- 
heartenment I should have set the increasing zest wherewith 
the comparative method is being historically applied to the 
investigation of the origin of law and of political institu- 
tions, and should have dwelt on the revived study of primi- 
tive custom as the foundation of those institutions, as well 
as on the more active discussion of constitutional questions 
generally, whether foreign, or American, or domestic, and 
the vigour which so many of our younger writers show in ex- 
amining the ethical and economic bases and grounds of law, 
with views wider and more sympathetic, if also more suffused 
by the moist light of emotion, than were those which some 
among us drew from the Utilitarians of the last generation. 
But these topics would lead me too far afield ; it is for the 
present enough to observe two happy changes which we have 
ourselves seen — one, the warmer interest which the two an- 
cient Universities display in the problems that engage the 
attention of social reformers and the willingness they show 



900 VALEDICTORY LECTURE 

to aid practically in their solution ; the other the much larger 
share which the jurists and constitutional students, as well as 
the economists, of America and the British colonies have 
come to take in all these discussions. As our books are 
known and conned beyond the ocean, so here we read and 
prize the most eminent colonial writers ; and we find in an 
American magazine, the Political Science Quarterly, an ex- 
cellently conducted organ, such as Britain has not yet been 
able to provide, for the discussion in a scientific spirit of 
a whole class of constitutional and quasi-political questions. 
As the isolation of England from Continental Europe is less 
marked than it was half a century ago, so still more conspicu- 
ously does the intellectual and moral unity of the English 
race dispersed throughout the world stand forth to-day in a 
clearer and fuller light. 

Let us turn back to consider what still remains to be done 
to give this law school, now firmly established in the Univer- 
sity, its due hold upon the legal profession and its due 
opportunities of promoting the progress of legal science. 
None of us can be blind to its present deficiencies. We have 
accomplished less than we hoped in raising up a band of 
young lawyers who would maintain, even in the midst of 
London practice, an interest in legal history and juristic 
speculation. The number of persons in England who care 
for either subject is undeniably small, probably smaller, in 
proportion to the size and influence of the profession, than in 
any other civilized country ; and it increases so slowly as to 
seem to discredit the efforts of the Universities. Of those 
who have undergone our law examinations comparatively few 
have either enriched these subjects by their writings, or have 
become teachers among us, or have taken any part in promot- 
ing legal studies elsewhere 1 . 

How is this deficiency, which ought to be candidly con- 
fessed, to be explained ? No one will lay it at the door of 
the University and College teachers, whose eminent services 
have been already referred to. To me it seems chiefly due to 

1 A very few names occur to me of persons who have so written or taught, but 
I abstain from mentioning these lest I should omit others. 



VALEDICTORY LECTURE 901 

the following causes, causes which I mention because they 
may all be removed. One of them is the short-sighted and 
perhaps somewhat perverse unwillingness of the authorities 
who control admission to practice in both branches of the 
profession in London, to give full recognition to our Oxford 
Law Examinations and Degree. Were the tests we apply so 
recognized as to relieve one who had passed them from all 
examinations for admission either to the bar or to practice 
as a solicitor, except such examinations as turn upon those 
purely practical matters which can only be learnt in a bar- 
rister's chambers or a solicitor's office, a strong motive would 
be supplied to men destined for the profession to pursue 
their legal studies and take their legal examinations here, 
where we may without vanity say that both teaching and ex- 
amining are understood much better than by the professional 
authorities in London. Needless to add that the University 
would be perfectly ready to allow those authorities every 
means of satisfying themselves of the character of her exami- 
nations, as the General Medical Council is accustomed to 
supervise the medical examinations of the various medical 
bodies. 

A second cause lies with Oxford herself in her own exami- 
nations. Not only do they cramp the teacher, practically 
debarring him from some topics ; but they are so arranged 
as to prevent the Law School from receiving, with some few 
exceptions, men of the first intellectual rank. The ablest 
and best prepared of the students naturally, and rightly, enter 
the classical school, and find themselves obliged, when they 
have obtained their degree in it at the age of twenty-three, 
to quit the University for the work of life. Do not suppose 
that I for a moment desire to draw such men away from the 
classical school. No one who has himself passed through 
the training of that school will doubt its superior value to 
even the best-arranged Law School, as a part of the education 
needed to make a good scholar, a good citizen, and a good 
Christian. What we want is such a revision of our arrange- 
ments as will bring men to the University somewhat younger, 
and will enable those who have obtained honours in the 



909 VALEDICTORY LECTURE 

school of Literae Humaniores, and intend to follow the legal 
profession, to pass into the Law School when they have taken 
their B.A. classical honours, and devote at least a year 
(though in the Law Schools of America two years at least are 
thought needful) to professional studies. At present Oxford 
is in the absurd position of practically excluding from the 
legal instruction which the University provides the most 
promising of her students, the very men who are best fitted 
to turn it to account in their subsequent career. They spend 
at school a year which they ought to spend at college, and 
they spin out their general studies so long that they are un- 
able to obtain that scientific training in the future work of 
their life which the University has been at such pains to set 
before them. To find time and make provision in our cur- 
riculum for professional as well as general literary studies 
was one of the chief problems which the Commissioners of 
1878-81 ought to have dealt with. Their failure throws back 
upon the University herself the duty of reform. Other, 
though less material, causes may be found in the undue promi- 
nence which examinations have been suffered to take in the 
system, and in the very unsatisfactory relations between the 
teaching provided by the University and that which the Col- 
leges supply, relations which involve much overlapping and 
a serious waste of teaching power. 

I need not pursue this topic into its details. Let it suffice 
to remark that it is not merely for the sake of the University 
that one would desire to see her influence upon legal studies 
extended. Over and above that general liberal education 
which it is her main business to give, and on which neither 
law nor any other special study must be suffered to infringe, 
it is her duty to handle professional studies in a wide and 
philosophic spirit, to raise them above mere gainful arts into 
the domain of science, to draw to herself the ablest of those 
who are entering these professions, the men from whom each 
profession receives its tone and temper. You all know how 
much the practical sciences, such as medicine, chemistry, 
and engineering, have gained by being closely associated with 
the pursuit of abstract science. No less true is it that men 



VALEDICTORY LECTURE 903 

who follow these occupations, and those who devote them- 
selves to the bar or to the church, profit by their association 
with literary and scientific culture and its central home here, 
feeling themselves members of a great learned corporation, 
and carrying away with them the influence of the ideals it 
has taught them to cherish. It is upon the clergy that this 
influence has hitherto told most; nor has anything done 
more to keep the clergy of the Church of England from 
becoming a caste and to stimulate their activity in those 
fields of philosophic and historical research wherein they 
have won so much distinction. One would like to see 
the University lay the same hold on the other great profes- 
sions likewise. 

This, however, is only one of the points in which observers 
who have watched and studied Oxford from without as well 
as from within are disposed to think that she does not fully 
comprehend, does not at any rate fully use, her unrivalled 
opportunities. I touch upon a delicate point. Yet as Homer 
occasionally invests a dying warrior with prophetic gifts, one 
who is on the eve of departure may be permitted to give ex- 
pression to some of the aspirations that have long filled his 
mind when he has thought of what Oxford might achieve. 
She seems at present to be too exclusively occupied not only 
with the giving of a general liberal education (to the dispa- 
ragement of professional studies), but also with her regular 
curriculum and those who follow it, to the neglect of those 
others, now comparatively few, but capable of almost in- 
definite increase, who desire not so much to follow a regular 
course or secure a degree as to obtain special training in 
some department of learning. Have we not, in our English 
love of competition and our tendency to reduce everything to 
a palpable concrete result, allowed the examination system to 
grow too powerful, till it has become the master instead of the 
servant of teaching and has distracted our attention from the 
primary duty of a University ? It is not any revolutionary 
change one would desire to see. Such changes are seldom 
either easy or salutary ; while as regards the college system, 
I find something to regret in those inroads upon the social 



904 VALEDICTORY LECTURE 

life and corporate character of the colleges for which the last 
Commission is responsible. The reform chiefly needed is 
a reform that would neither injure the Colleges nor affect the 
character of the University as a seat of general liberal educa- 
tion. Rather let us return to the older conception of a Uni- 
versity as a place to which every one who desired instruction 
might come, knowing that as Oxford took all knowledge for 
her province she would provide him with whatever instruction 
he required. The abundance and the cheapness of literature 
have not diminished, perhaps they have even stimulated, the 
demand for the best oral teaching, while the recent establish- 
ment of so many prosperous colleges in the great towns, the 
spread of University Extension lectures, the growth of Science 
schools, have immensely increased the number of young men 
who would come hither for a year or more to obtain such 
teaching were they sure of finding it. What is the present 
position ? There are professors, many of whom, eminent as 
they are, cannot secure proper classes, because the under- 
graduates are occupied, under the guidance of the college 
teachers, in preparing for degree examinations. For the 
teaching of some important branches, especially in natural 
and in economic science, no adequate staff is provided. 
England has been outstripped not only by Germany but also 
by the United States, in the provision of what the Americans 
call Post-Graduate courses, a provision which even the pre- 
sent poverty of the University need not hinder her from mak- 
ing, were but a reasonable system of fees introduced and 
revenues husbanded that are now unprofitably spent. Both 
the new University teachers who might be created and the 
present professors to whom the existing system refuses hearers 
would be only too happy to give those courses, if the students 
could be found and the requisite arrangements made. The 
men who would attend the courses are to be found, some of 
them within, many more without the University. Those with- 
out do not come because the courses have not been offered : 
and to provide for both sets, existing arrangements must be 
remodelled, for these contemplate only the normal under- 
graduate who arrives at nineteen, is examined, and departs at 



VALEDICTORY LECTURE 905 

twenty-two or twenty-three, and take no account of those who 
desire neither examinations nor degrees, but simply to per- 
fect themselves in some department of science or learning. 
Were such courses offered, and were those antiquated arrange- 
ments altered, you might soon expect a sensible afflux of 
students, not from England only, but from far beyond the 
bounds of England. 

Perhaps those who dwell in Oxford have scarcely yet re- 
alized the magnificent position this University holds, as not 
only the oldest and the most externally beautiful and sumptu- 
ous place of education in the English-speaking world, but as 
a spot whose name and fame exert a wonderful power over 
the imagination of the English peoples beyond the sea, many 
of whose youth would gladly flock hither were they encour- 
aged to do so by arrangements suited to their needs. For 
those among the studious youth of the United States and 
Canada who desire to follow out their special studies, I can 
safely say from what I have seen of Canada and the United 
States that did Oxford and Cambridge provide what the Uni- 
versities of Germany provide, and were it as easy to enter 
here and choose the subject one seeks to study as it is in the 
Universities of Germany, it is to Oxford and Cambridge rather 
than to Germany that most of them would resort : nor could 
the value be overestimated of such a tie as their member- 
ship here would create between the ancient mother and the 
scattered children, soon to be stronger than their mother, but 
still looking to her as the hallowed well-spring of their 
life. 

It is always sad to part from work with which the best years 
of one's life have been largely occupied : and to me this com- 
mon regret is deepened by the associations, full of antique 
dignity, of the office I am resigning and by the nature of the 
work which has been a source of unfailing pleasure. And 
my regret at parting is the keener because I part from the 
place where I have known so many of those brilliant figures 
whom the last twenty years have taken from us, one of them 
happily still in the world, though long since lost to the Uni- 
versity which his splendid powers adorned, — I mean Mr. 



906 VALEDICTORY LECTURE 

Goldwin Smith, — the rest now living only in our recollec- 
tion. Vividly there come back to me as I stand by the open 
gate, the kindly wisdom of the late President of Corpus 
Christi *, most loveable of men; the luminous and fertile 
intellect of Sir Henry Maine 2 ; the masculine force and high 
sense of public duty of Thomas Green 3 ; the penetration and 
learning, not more wide than exact, of Mark Pattison 4 ; the 
fine taste and golden lips of Henry Liddon ; the warm heart 
and vehement discourse and noble love of truth of Edward 
Freeman 6 ; the fire, the courage, the eagerness, the zeal in 
all good causes of one whose university lectures and sermons 
were so powerful a stimulus to many of us in our undergradu- 
ate days, Arthur Stanley 6 . These men had some sharp con- 
tests in their lives, but they are all alike enshrined in our 
memory as men of whom the Oxford of those days may well 
be proud. 

Nor must a word of grateful farewell be omitted to those 
colleagues in the Faculty of Law — among whom I will ven- 
ture to reckon the Warden of All Souls — whose thoughts and 
plans it has been a constant pleasure to share, and with whom 
I have lived these many years in a friendship which no cloud 
of personal disagreement, nor any divergence of political 
opinions, has ever for a moment darkened. With the regret 
of parting I carry away the delightful recollection of those 
years, and a sense which time will not diminish of the honour 
it has been to be permitted so long to serve this great Uni- 
versity, the oldest and most venerated of the dwellings of 
learning in Britain, dear to us not only because our brightest 
years were spent among her towers and groves, but still more 
because in her, as now in maturer life we scan a sometimes 
troubled horizon to watch for signs of storm, we see an insti- 
tution which has stood unshaken while dynasties have fallen 
and constitutions have been changed, and which still and 

1 Dr. John Matthias Wilson, formerly Professor of Moral Philosophy. 

2 Formerly Corpus Professor of Jurisprudence. 

3 Formerly Professor of Moral Philosophy. 

4 Formerly Rector of Lincoln College. 

6 Formerly Regius Professor of Modern History. 

6 Formerly Regius Professor of Ecclesiastical History, afterwards Dean of 
Westminster. 



VALEDICTORY LECTURE 907 

always, placed above the shock of party conflicts and renew- 
ing her youth in fresh activities from age to age, embodies in 
visible and stately form the unbroken continuity of the intel- 
lectual life of our country, and still commands, as fully as 
ever in the past, the loving devotion of her children. 



INDEX 



Abolitionists, in America, 346. 

Aborigines, in Australia, 459. 

Achaean League, 173. 

Adoption, by Indian princes, 31 ; 
in Indian law, 106 ; by Ro- 
man emperors, 866. 

Adultery, a crime in Indian 
Penal Code, 108 ; in Roman 
law, 800. 

Aeschylus, quoted, 142. 

Afghanistan, 17. 

Agricola, 13, 802. 

Alabama case, 348. 

Alarich, II, laws of, 760, 868. 

Algeria, 248. 

Alsace, annexation of, 258. 

Althing, or general assembly, 
in Iceland, 272-280, 291, 298. 

Althusius, on sovereignty, 533. 

Amendment of constitution, 130, 
174-184 ; in Australia, 437, 

438. 

America. See United States. 

American Commonwealth, re- 
ferred to, 170, 179, 316, 496. 

Analytic school of jurispru- 
dence, 612-617. 

Anarchism, 485, 605. 

Areopagus, 79. 

Argentina, constitution of, 180, 
214. 

Aristocracy and flexible consti- 
tutions, 152-157. 



Aristotle, 132, 359, 464, 567, 728, 
869. 

Armenia, 17. 

Army of Rome and India, 15, y]. 

Asiatic peoples, 476, 477. 

Augustus, 483, 513, 518, 677, 
704, 801, 802. 

Austin criticized, 536-543, 569, 
613-617. 

Australia : constitution of the 
Commonwealth, 391-462 ; 
movement for federation, 394- 
403 ; conditions favouring fe- 
deration, 403-408 ; character 
of federation, 408-410; dis- 
tribution of powers between 
Commonwealth and States, 
410-412 ; position of States 
under constitution, 413-415 ; 
differences from United States 
and Canada, 416-418 ; few 
restrictions on powers of 
Commonwealth, 419-421 ; the 
legislature, 421-424; the exe- 
cutive, 424 ; the judiciary, 
425-428 ; dependence of exe- 
cutive upon legislature, 428- 
431 ; provisions against dead- 
locks, 431, 432 ; relations of 
the two Houses, 432-435 ; 
miscellaneous provisions, 436, 
437 ; amendment of constitu- 
tion, 437, 438 ; relations of 



910 



INDEX 



Commonwealth to British 
crown, 438-440 ; comparison 
with United States and Can- 
ada, 440-443 ; general obser- 
vations, 443-447 ; democratic 
character, 447-450 ; political 
parties, 450-452 ; future po- 
litical issues, 452-456 ; pos- 
sible entrance of new States, 
457-460 ; future relations to 
Britain, 460-462. 
Austro-Hungary, constitution 
of, 172, 240, 393, 538, 539 ; di- 
vorce in, 840. 

Bacon, 221, 542, 865. 
Baker, Newton D., 836. 
Banns, publication of, 812. 
Basilica, of Leo, 748, 779. 
Belgium, divorce in, 840. 
Bentham, criticized, 465, 499- 

502, 536-543, 569. 613-617. 
Bernier, on Mogul empire, 9. 
Betrothal, in Roman law, 792. 
Beyrut, law school of, 684, 730. 
Bills, in House of Commons, 

734. 883. 
Bishops, in Iceland, 275. 
Bismarck, 483. 
Blackstone, 101, 526, 601, 615, 

684, 820, 823, 875. 
Blood feuds, 27b, 640. 
Bodin, on sovereignty, 532, 

533- 
Bologna, law school of, 90, 646, 

656. 
Bosnia, 548. 
Boss system in America, 349, 

487. 
Bowen, Lord, 630, 685. 
Bracton, 681, 740. 
Brand, President, 387. 



Breach of promise, action for, 

793- 
Brehon law, 95, 621. 
Bulgaria, constitution of, 178, 

179. 548. 

Cabinet government, in Eng- 
land, 151 ; under the Austra- 
lian constitution, 429-431. 

Cairns, Lord, 630, 685. 

Cairo, university of, 646-656. 

Calhoun, 330, 550. 

Canada, constitution, 168, 172 ; 
compared with Australian, 

393. 399- 4o7. 4II-4I4, 415. 
416-418, 440-443 ; law of di- 
vorce, 834. 

Canning, Lord, 31. 

Canon Law, growth of, 89, 90, 
668 ; regulation of marriage 
and divorce by, 809, 811-814, 
825-827. 

Cape Colony, 360. 

Capital of United States, 339 ; 
of Australian Commonwealth, 
436. 

Caracalla, edict of, 40, 85, 585, 
758. 

Case law, compared with prae- 
torian edict, 698-708. 

Caste, 57. 

Catullus, 23, 44, 792. 

Caucus, the, 151. 

Celibacy, discouragement of, at 
Rome, 798, 806 ; of clergy, 809. 

Centripetal and centrifugal 
forces, their action on politi- 
cal constitutions, 216-262 ; in- 
terest and sympathy, 222-224 ; 
race and religion, 224-226 ; 
how constitutions may utilize 
centripetal forces, 229-237 ; 



INDEX 



911 



and how modify centrifugal 
forces, 237-249 ; illustrations 
from United States, 250, 251 ; 
probable results in the future, 
254-262 ; effect of conquest 
and family succession, 256- 
258. 

Chancellor, the Lord, as builder 
of equity, 599-601 ; as law- 
maker, 689, 690, 695-697. 

Character, of conquering races, 
49-51. 

Chartism, 149, 201. 

Chastisement of wife by hus- 
band, 819. 

Christianity, unifying influence 
of, 2 ; persecution of, 44 ; in 
India, 57 ; introduction into 
Iceland, 294, 295 ; as affecting 
growth of law, 665-668, 757 ; 
influence on Roman law of 
divorce, 803-805. 

Church, identified with State, 
663, 664. 

Cicero, against Verres, 22, 76, 
80, 692 ; on the Law of Na- 
ture, 574-577, 608 ; on the 
Twelve Tables, 752, 877 ; di- 
vorced his wife, 801. 

Citizenship under Roman em- 
pire, 40, 76. 

Clarendon, Constitutions of, 

763. 
Claudian, quoted, 63. 
Claudius, Emperor, 807. 
Climate, effect of, on Roman and 

Indian empires, 53. 
Clive, 8, 11, 24, 50. 
Codicilli, 704. 
Codification, of Roman law, 89 

of French law, 91, 325, 777 

of German law, 92, 778, 864 



of Indian law, 1 03-113 ; of 
Icelandic law, 286-288. 

Coempiio, Roman marriage by, 
788-790. 

Coke, Lord, 629, 680. 

Collectivism, 261. 

Colonies, of England, 4. 

Colour of Race, effect of, in Ro- 
man and Indian empires, 53- 
56, 245-248. 

Comitia, 711-716. 

Commands, laws as, 280, 465, 
499-502, 625. 

Committee stage, in English 
legislation, 736. 

Commonwealth. See Australia. 

Comparative method of jurispru- 
dence, 604, 619-622. 

Concubinage, 808. 

Confarreatio, Roman marriage 
by, 788-790. 

Congress, as a legislative body, 

733-735- 

Conquest, formation of empire 
by> 7~ l 3 '< extension of Roman 
law by, 75, 527 ; effect of, as 
a centripetal force, 256-259. 

Consistorium, 725. 

Consolidation : of law in India, 
in ; of law in America, 735 ; 
of English law, 738, 883. 

Constantinople, law school of, 
684, 730. 

Constituta, of Roman emperors, 
84, 722. 

Constitutions : of Rome and 
England, 124-128 ; proposed 
new classification, 128-136 ; 
origin of flexible, 136-139 ; 
strength and weakness of flexi- 
ble, 139-152 ; aristocracies, 
152-157 ; influence on the 



912 



INDEX 



mind of a nation, 158-164 ; 
capacity for territorial expan- 
sion, 164-167 ; origin of rigid, 
167-174; enactment and 
amendment of rigid, 174-184 ; 
definiteness of rigid, 184-187 ; 
stability of rigid, 187-193 ; in- 
terpretation of rigid, 193-198 ; 
democracies, 198-204 ; future 
of flexible and rigid, 205-210 ; 
possibility of new types, 210- 
213 ; classes of governments, 
214, 215. 

Contract code, in India, no, in. 

Contractualists, the, 463-466, 

599- 
Convention, for amendment of 

constitution, 179, 181, 183,398. 

Cousins, intermarriage of, 807. 

Criminal law, 78, 741. 

Croatia, 227. 

Cromwell, Oliver, 7, 170, 512, 
519. 

Crown colonies, 4. 
» Custom : source of Icelandic 
law, 280-283 ; of law gener- 
ally, 640, 672, 673, 687, 741. 

Customs duties, in Australian 
constitution, 436. 

Dacoity, 21. 

Dante, 317 ; quoted, 529, 594, 

722. 
Dartmouth college case, 414. 
Darwin, 307, 588. 
Deadlocks, provisions against, 

in Australian constitution, 

431-435- 
Deceased wife's sister, marriage 

with, under Roman law, 807. 
Decemviral legislation, at 

Rome, 747. 



Declaration of Independence, 

49 1. 579- 599- 

Deference, as ground of political 
obedience, 469, 470, 474. 

Delegations, in Austro-Hun- 
gary, 539. 

Democracy and rigid constitu- 
tions, 198-204. 

Democratic character of Austra- 
lian constitution, 447-450. 

Demosthenes, quoted, 568, 594. 

Denmark, acquisition of Iceland 
by, 300; constitution of, 513, 
515 ; divorce in, 839. 

Dicey, Prof. E., 134, 686, 889. 

Dictator, 145, 508. 

Diet, of empire, 272, 298, 315. 

Diocletian, 729, 748, 756. 

Divorce : in Ireland, 772, 783, 
830 ; in Scotland, 783, 827- 
829 ; in Roman law, 799-802 ; 
influence of Christianity on 
Roman law, 803-805 ; under 
canon law, 825-827 ; later law 
in England and Scotland, 827- 
830 ; laws in United States, 
830-833 ; American statistics, 
834-839 ; in modern Euro- 
pean countries, 839-842 ; con- 
nexion with conjugal infidel- 
ity, 848-851 ; does English 
law need amendment ? 852- 
856. 

Donatio propter nuptias, 796, 
804, 824. 

Do s, in Roman law, 795, 803, 824. 

Dower, 814, 820, 824. 

Drayton, quoted, 588. 

Droit Naturel, 604, 608-612. 

Duck, Arthur, 596, 862. 

Dutch law, in South Africa, 73, 
93. 367- 



INDEX 



913 



Dutch republics, in South Af- 
rica, 359-390- 

Ecclesia, of Greek cities, 156, 
611. 

Ecclesiastical courts, 815, 816, 
827. 

Edict of the praetor, 78, 692, 
693, 698-701, 706. 

Edictum fierftetuum, 703. 

Education, in Roman and In- 
dian empires, 47, 61. 

Edward I, legislation of, 763. 

Egypt, political position of, 29, 
59, 87, 226, 239, 513, 548. 

El Azhar, mosque and univer- 
sity, 646-656. 

Elegance, in Roman law, 629, 
879. 

Emancipation of women, 799, 
846-848, 857. 

Empedocles, quoted, 567. 

Emperor : as sovereign in mid- 
dle ages, 529 ; as source of 
law at Rome, 720-730. 

England : Roman empire com- 
pared with British empire in 
India, 1— 71 ; extension of 
English law throughout the 
world, 72-123 ; the constitu- 
tion, 124-126, 130, 132-135, 
141, 143, 146, 147, 148, 155, 
163, 165, 175, 195, 206-210, 
230 ; sovereignty of Parlia- 
ment, 510, 513, 519, 538, 553 ; 
conception of equity as af- 
fected by law of nature, 599- 
602; analytic school of juris- 
prudence, 612-617 ; want of 
elegance in English law, 630 ; 
legal writers as sources of 
law, 680-688 ; judges as 
58 



sources of law, 688-690, 695- 
698 ; case law, 698-706 ; legis- 
lation by Parliament, 731 — 
739 ; five epochs of legal 
change, 749 ; outline of prog- 
ress of legal changes, 762- 
769 ; comparison with Roman 
law, 769-776 ; private law least 
affected, 778-781 ; law of mar- 
riage, 814-818 ; property re- 
lations of consorts, 818-820 ; 
gradual amendment of law, 
817-820, 854, 882 ; law of di- 
vorce, 826-830 ; does law of 
divorce need amendment ? 
852-856. 

English language in India, 62. 

Ennius, quoted, 615. 

Epicurus, 568. 

Equality theory of marriage, 
823-825, 856. 

Equity, in Roman law, 581, 582 ; 
in English law, 599, 600 ; in 
Indian law, 601 ; as amending 
law of wife's property, 821. 

Erastianism, 639. 

Eurasians, in India, 55, 58, 116. 

Euripides, quoted, 784. 

European influence over rest of 
world, 1. 

Evidence Code, in India, 109. 

Executive, the : at Rome, 162, 
163 ; in Australian constitu- 
tion, 424, 429. 

Executive Council, the : in the 
Orange Free State, 366, 382, 
384, 387 ; in the South Afri- 
can Republic, 372, 382, 384. 

Family, its influence on Roman 
law, 770 ; as religious organ- 
ism, 640. 



914 



INDEX 



Family succession : effect of, as 

a centripetal force, 256-258. 
Fathers of the Church, 666, 869. 
Fathers of the Republic, 306, 

3I9- 
Fear, as ground of political obe- 
dience, 463-467, 472-474, 478, 

Federal courts : in the United 
States, . 34, 350, 351 ; in Aus- 
tralia, 424-427. 

Federalist, The, 302, 307-313. 

Federation : types of, 392, 393, 
408-410 ; sovereignty in, 549- 
552 ; of British empire, 207- 
210, 462. 

Fetwa, 664. 

Finance : in Roman and Indian 
empires, 31-35 ; in Austra- 
lian constitution, 399, 436. 

Finland, autonomy of, 243. 

Flag, the, in the United States, 

251. 349- 

Flexible and rigid constitutions, 
124-213 ; is the Transvaal con- 
stitution flexible ? 375, 376. 

Folk Mot, 138, 267, 296, 362, 711. 

Formulae, 741. 

France : constitution of the re- 
public, 130, 172 ; legal his- 
tory, 776-778 ; divorce in, 839, 
840. 

Franks, the, 480. 

Free State. See Orange Free 
State. 

Free Trade, 483. 

French law, codification of, 91. 

French Republic, constitution 
of, 130, 181. 

Frontiers, of Roman and Indian 
empires, 12-16. 

Fundamental statutes, 175. 



Fusion : of races in Roman em- 
pire, 52, 62 ; of Roman and 
provincial law, 82, 83. 

Future life, belief in, 847. 

Fylki, in Norway, 296. 

Gaius, 581, 583, 590, 680, 684, 

7io, 717, 759. 789, 79 x > 8 94- 
Gardiner, S. R., 170. 
Gens, meaning of, 572. 
Gentili, Alberico, 602, 890. 
German empire, constitution of, 

167, 174, 182, 393 ; divorce in, 

839- 

German law, codification of, 92 ; 
history of, 776-778. 

Ghosts, legal ejectment of, in 
Iceland, 290, 291. 

Gierke, Prof. Otto, 533, 595. 

Gilman, President, 320. 

Glanvill, 680, 740. 

Goethe, quoted, 596. 

GoSi, or priest-chieftain, in Ice- 
land, 267-271, 274, 275, 279, 
289, 295-297. 

Gortyn, laws of, 76. 

Grace, opposed to law, 638. 

Graduation, at El Azhar, 651. 

Grammar, in Musulman univer- 
sity, 651. 

Gratian, 594. 

Greece, constitution of, 177. 

Greek Civilization, spread of, in 
ancient world, 2. 

Greek law, 76, 87, 584, 632. 

Greenland, colonized from Ice- 
land, 280. 

Grondwet, the : of the South Af- 
rican Republic, 369-373 ; was 
it a rigid constitution ? 375— 
380. 

Grotius, 602, 603. 



INDEX 



915 



Group, defined, 218 ; parlia- 
mentary, 452. 
Growth, phenomena of, 558. 
Grueber, Dr. E., 889. 
Gunnlaug's Saga, 292, 293. 

Habit, as governing action, 473, 

500, 517. 
Haiti, constitution of, 179. 
Hamilton, Alexander, chief 

writer in The Federalist, 302, 

306, 307, 309-319. 357, 550- 
Hand power, in Roman mar- 
riage law, 787-791. 
Hannen, Lord, 852. 
Harrison, Frederic, on Austin, 

554, 555- 

Harvard University, 655. 

Hastings, Warren, 24, 65, 384. 

Hatts, promulgated by the Sul- 
tan, 674. 

Hawaiian Islands, 2, 246, 348. 

Hegel, 552, 611. 

Henry II, influence on English 
law, 762-764. 

Heraclitus, 566. 

Herodotus, 563. 

High Court : in India, 38 ; in 
Australia, 424-427. 

Hindu Law, administered in 
India, 97-101. 

Hindustani language, 60. 

Historical school of jurispru- 
dence, 617-619. 

Hobbes, criticized, 533-535, 551, 
598. 

Holland, constitution of, 178, 
181 ; divorce in, 839, 840. 

Holland, Dr., 608. 

Holmes, Chief Justice, 624, 
684. 

Home Rule, for Ireland, 176. 



Homer, 137, 268, 501, 566, 640, 
9°3- 

Homicide, penalty for, in Ice- 
land, 270, 289. 

Horace, 55 ; quoted, 755. 

House of Representatives, the : 
its position in the United 
States, 309, 311, 314, 316, 335, 
352 ; in the Australian Com- 
monwealth, 421-423, 429-435, 
448. 

Hungary, constitution of, 132. 

Husband and wife, identity of, 
in English law, 818, 819. See- 
also Marriage. 

Hustings, 267. 

Iceland, 263-300 : discovery and 
settlement, 263-266 ; begin- 
nings of a polity, 266 ; the 
priest-chieftain, 267-269 ; first 
political constitution, 269- 
271 ; organization and pow- 
ers of the Althing, 271-275 ; 
the speaker of the law, 275 ; 
Thingvellir, 276-278 ; charac- 
ter of the republic, 279, 280 ; 
character and growth of the 
law, 281-286 ; sources of our 
knowledge of the law, 287, 
288 ; illustrations of the law, 
288-293; introduction of 
Christianity, 294, 295 ; reflec- 
tions on early history, 296- 
298 ; fall of the republic, 299 ; 
union with Denmark, 300 ; 
independence, 240, 483. 

Ihering, Rudolf von, 619, 898. 

Ilbert, Sir C. P., 24, 56, 73, 101, 
602, 731, 735. 

Imperium, of praetor, 694. 

Inaugural lecture, 860-886. 



916 



INDEX 



India : British conquest, 4-6 ; 
military character of empire, 
11, 12 ; natural frontiers, 14, 
15 ; roads and railways, 17, 
18 ; internal peace, 20, 21 ; 
character of administration, 
23-28 ; protected states, 31 ; 
fiscal system, 31-34 ; native 
army, 38 ; native civil service, 
38 ; private civil rights, 41 ; 
legislative councils, 42 ; reli- 
gious usages, 47 ; education, 
48 ; influence of climate, 53 ; 
influence of colour, 54-56 ; in- 
fluence of religion, 56, 57 ; 
influence of language and 
literature, 60-62 ; no fusion 
of races, 63 ; little influence 
on England, 64-66 ; probable 
future of British power, 69- 
71 ; legal systems found by 
the English, 96-99 ; English 
continued existing systems of 
law, 99-103, 573 ; codification, 
103-105 ; merits and working 
of the codes, 108-112 ; proba- 
ble future t>f legal develop- 
ment, 118-121 ; as governed 
by Englishmen, 475. 

Indian tribes, in United States, 
316, 341, 475. 

Individualism, 492, 850. 

Indolence, as ground of political 
obedience, 467-469, 473, 474. 

International law : sovereignty 
in, 546-549 ; natural law in, 
602-604. 

Interpretation of rigid constitu- 
tions, 193-198. 

Inter-state commission, 425. 

Ireland, law of, 94 ; political 
forces in, 224, 241 ; little influ- 



ence on English law, 771 ; no 
divorce in, 830. 

Irish, in Iceland, 264, 266. 

Irrigation, in Australia, 396, 400, 
436, 456. 

Isidore of Seville, 593. 

Islam, law of, 72, 74 ; adminis- 
tered in India, 96-102 ; char- 
acteristics of, 646, 658-665. 

Italy, constitution of, 133, 167, 
171, 176. 

Judex, in Roman law, 678. 

Ius, contrasted with lex, 128, 
709. 

Ius gentium, in Roman law, 82, 
569-575. 583-586, 753- 

Ius honorarium, 574. 

Ius non scrip turn, 126. 

Ius respondendi, in Roman law, 
678-680. 

Jackson, President, 330, 339,344. 

Japan, constitution of, 167, 214, 
520 ; divorce in, 834. 

Jay, Chief Justice, 302, 306. 

Jefferson, 305, 306, 307, 312, 544. 

Jewish law, 644, 665 ; of di- 
vorce, 828. 

Joint stock companies, law of, 
743, 768, 878. 

Jointure, in lieu of dower, 820. 

Judges, the, as makers of law, 
687-698. 

Judicature Act, 864, 873, 899. 

Judiciary, the : its position in the 
United States, 334, 350, 351 ; 
in the Orange Free State, 366 ; 
in the South African Repub- 
lic, 372, 378, 386 ; in the Aus- 
tralian Commonwealth, 425- 
428 ; as makers of law, 687- 
698. 



INDEX 



917 



Julian, jurist, 185, 526,634, 671, 

703- 

Julius Caesar, 150. 

Jurists, as makers of law, 591, 
592, 676-681 ; difference be- 
tween the action of Roman 
and English, 681-687, 880. 

Justinian, his codification of Ro- 
man law, 759, 760 ; change in 
law of divorce, 804. 

Kadi, Muhammadan judge, 652, 
663, 674. 

Kant, 552, 611. 

Kent, Chancellor, 684. 

Khalifs, the, 514, 664. 

King's Proctor, 829. 

Kissing, as test of prohibited de- 
grees, 807. 

Koran, the, 511, 649, 652, 656, 
659, 661, 674. 

Kotze", J. G., 369. 

Kovalevsky, 819. 

Kruger, President, 389. 

Labeo, 578, 680, 683. 

Labour Party, in the United 

States, 349 ; in Australia, 452. 
Laissez-faire, 485, 492. 
Land, its influence on English 

law, 771. 
Land Revenue, in Roman and 

Indian empires, 31-33. 
Landesgemeinde, 137, 362. 
Langdell, Prof. C. C, 95, 894. 
Language, effect of, in Roman 

and Indian empires, 59-62. 
Laos States, in Siam, 233. 
Law Reports, compared with 

Roman treatises, 685-687. 
Law Speaker, in Iceland, 275, 

276, 278, 280, 283. 



Lawyers, power of, in America, 

339- 

Legal development at Rome and 
in England, 745-781 : five 
chief epochs of legal change 
at Rome, 747-749 > ^ ve epochs 
of legal change in England, 
749-75 1 ; outline of legal 
changes at Rome, 751-761 ; 
outline of legal changes in 
England, 762-769 ; differences 
between development of Ro- 
man and English law, 769- 
776 ; observations on France 
and Germany, 776-778 ; pri- 
vate law least affected, 778- 
781. 

Legal profession, as a maker of 
law, 687-698. 

Legislation. See Methods of 
law-making. 

Legislative Councils, in India, 
42. 

Legitimation, of children born 
before marriage, 809. 

Leibnitz, on Mogul empire, 9. 

Leo, Emperor-Philosopher : Ba- 
silica of, 748, 779 ; abolishes 
divorce by consent, 805, 809. 

Lex, meaning of, 709, 710, 714, 

7i5. 

Libel, punishment for, in Ice- 
land, 289. 

Liberty, love of, 482, 483. 

Liberty of the press, in South 
African republics, 367, 370. 

Limitation of sovereignty, 521, 
522. 

Literature, effect of, in Roman 
and Indian empires, 59-62. 

Lithuania, Roman law in, 93. 

Littleton, 681. 



918 



INDEX 



Livy, quoted, 572, 676, 752. 

Liwan, or hall of prayer, 650. 

Locke, 598. 

Logberg, or Hill of Laws, in Ice- 
land, 278. 

Logsoguma'Sr, or Law Speaker, 
in Iceland, 275, 276, 278, 280, 
283. 

Lords, House of, 731-734, 737. 

Louis Napoleon, 180, 483, 
516. 

Lyall, Sir A. C, 31, 46. 

Macaulay, codification of Indian 
law by, 103, 109, 705. 

Madison, President, 302, 306, 
307, 314, 315, 550. 

Magistrates, as makers of law, 
687-698. 

Maine, Sir H. S., 142, 554, 580, 
584, 643, 878, 889, 906. 

Maitland, Prof., 731, 814, 815, 
818, 820, 826. 

Manipur, 21. 

Mansfield, Lord, 573, 615, 630, 
685, 693, 696, 862, 863. 

Mantle children, 810. 

Manus, in Roman marriage, 
787-790. 

Maoris, the, in New Zealand, 
248, 459. 

Marcian, 563, 581, 594. 

Marquardt, 27. 

Marriage and divorce under Ro- 
man and English law, 782- 
859 : diversity of law of mar- 
riage in different countries, 
782-784 ; character of mar- 
riage in early law, 784-786 ; 
early form of Roman marriage 
law, 786-789 ; change to later 
system, 789-791 ; personal re- 



lations of consorts, 791-794; 
pecuniary relations of con- 
sorts, 794-798 ; Roman con- 
ception of marriage, 798, 799 ; 
divorce in Roman law, 799- 
802 ; influence of Christianity 
on divorce, 803-805 ; encour- 
agementof marriage, 806 ; dis- 
couragement of second mar- 
riage, 806; prohibited degrees, 
806-808 ; natural marriage, 
808 ; concubinage, 808-810 ; 
marriage under canon law, 
811-814 ; English law of mar- 
riage, 814-818 ; property re- 
lations of consorts, 818-820 ; 
gradual amendment of Eng- 
lish matrimonial law, 821-825 ; 
divorce under canon law, 825- 
827 ; later law of divorce in 
England and Scotland, 827- 
830 ; divorce laws of United 
States, 830-833 ; statistics of 
divorce in America, 834 ; di- 
vorce in modern European 
countries, 839-842 ; compari- 
son of change at Rome with 
modern world, 842-845 ; ten- 
dencies affecting permanence 
of marriage tie, 846-851 • in- 
fluence of church and law, 851 ; 
does English law need amend- 
ment ? 852-856 ; changes in 
theory and sentiment regard- 
ing marriage, 856-859. 

Martial, quoted, 802. 

Martyrs, the Christian, 482. 

Mastery theory of marriage, 824, 
825. 

Maurer, Konrad, writer on Ice- 
land, 269. 

Mellish, Lord Justice, 630. 



INDEX 



919 



Mensa ct torus, divorce from, 

827, 828. 
Merriam, C. E., jun., 555. 
Merwing kings, 480. 

Metaphysical basis of law, 604, 
609-612. 

Methods of law-making in Rome 
and in England, 669-744 : law- 
making authorities in general, 
670-675 ; jurists as makers of 
law, 676-681 ; difference be- 
tween action of Roman and 
English jurists, 681-687 ; mag- 
istrates and judges as mak- 
ers of law, 687-698 ; prae- 
torian edicts compared with 
English case law, 698-708 ; di- 
rect legislation at Rome {a) 
the popular assembly, 708- 
716 ; (b) the senate, 716-720 ; 
(c) the emperor, 720-730 ; di- 
rect legislation in England — 
Parliament, 731-739 ; reflec- 
tions suggested by the history 
of legislation, 739-744. 

Methods of legal science, 607- 
637 : metaphysical or a priori, 
609-612 ; analytic, 612-617 ; 
historical, 617-619 ; compara- 
tive, 619-622 ; value of each, 
622-624 J utility for legal 
study, 624-628. 

Mexico, constitution of, 168, 173. 

Military Character of Roman 
and Indian empires, 11, 12. 

Milton, quoted, 492, 766 ; on di- 
vorce, 828. 

Mitteis, Dr. L., 85, 87, 585. 

Modestinus, 679, 759, 798, 867. 

Mogul emperors, 5, 9, 476, 514. 

Mommsen, 793, 898. 

Money bills, 135, 148, 432. 



Monroe Doctrine, the, 346, 401. 

Montenegro, an autocracy, 132, 
212, 214, 215. 

Montesquieu, 124, 318. 

Mormons, 785. 

Mosaic law, 645, 665. 

Mosque of El Azhar, 646-656. 

Mufti, 652, 674. 

Muhammadan law, adminis- 
tered in India, 97-102 ; char- 
acteristics of, 646, 658-665. 

Muirhead, 585, 678. 

Municipalities, in India, 28. 

Musulman law, administered in 
India, 97-102 ; characteristics 
of, 646, 658-665. 

Napoleon, codes of, 91, 92. 

Natal, 361, 362. 

National sentiment, as a politi- 
cal force, 238-242, 490, 491. 

Nations, in academical usage, 
653. 7ii. 

Natural marriage, 808, 812. 

Nature, Law of, 556-606 : origin 
of idea of Nature as a ruling 
force, 556-562 ; origin of con- 
ception of Natural Law, 562- 
569 ; Roman ius gentium or 
Law of the Nations, 570-575 ; 
connexion of law of Nature 
with Law of the Nations, 575— 
582; relation of Law of Nature 
to general customary law, 583- 
586 ; meaning attached by Ro- 
man jurists to Nature, 586— 
593 ; Law of Nature in mid- 
dle ages, 593-597 ; in modern 
times, 597-606. 

Naturrecht, 604, 607-612. 

Negotiable instruments, law of, 
742, 767 ; in Germany, 778. 



920 



INDEX 



Negro question in United States, 
247. 305, 313. 328, 329, 341, 
348, 356. 

Nettleship, Prof. H., 572. 

Newman, W. L., 583. 

New Testament, law in, 528, 
638, 644, 666, 826, 867. 

New Zealand, outside Austra- 
lian Commonwealth, 458, 

459- 
Non-regulation provinces, in 

India, 30. 
Norman feudalism, influence on 

British constitution, 163. 
Norway, constitution of, 177 ; 

relations with Sweden, 240 ; 

settlement of Iceland from, 

264-267 ; subjection of Iceland 

to, 299, 300 ; divorce in, 839, 

840. 
Novels of Justinian, 730. 
Nuncomar, execution of, 102. 

Obedience, political, 463-502 : 
theories regarding, 463-467 ; 
grounds of, 467-484 ; future 
of, 484-498 ; theory of, applied 
to jurisprudence, 499-502. 

Obiter dicta, 686, 698. 

Ohio, divorce in, 836. 

Old Age Pensions, specifically 
mentioned in Australian con- 
stitution, 400, 412, 448. 

Olympian games, as unifying 
influence, 237. 

Oppressed nationalities, 491. 

Orange Free State, 359-390 ; 
early history, 361-364 ; con- 
stitution of the republic, 364- 
368 ; observations on its work- 
ing, 380-387 ; recent history, 
387, 389- 39°- 



Orders in Council, 147, 688. 
Organs of law-making, 670-675. 
Orthodox Church, in Russia, 236. 
Outlawry, 642. 

Oxford, 646, 653, 655, 656, 905- 
907. 

Papinian, 634, 685, 693, 715, 725, 

759- 

Parke, Baron, 286. 

Parliament, as source of law in 
England, 130, 73*~739 ', sov- 
eignty of, 130, 510, 538 ; mar- 
riages dissolved by, 828. 

Parsis, in Parliament, 42. 

Partnership theory of marriage, 
824. 

Party organization, in the United 
States, 310, 313, 329, 331, 345, 
349. 351, 451. 452 ; in Aus- 
tralia, 450-452. 

Patagonia, 21 1. 

Patria Potestas, 86, 628, 643, 
866. 

Paul, jurist, 759, 792. 

Penal Code, in India, 104, 109, 
705, 742. 

Pension system, in United 
States, 315, 353. 

People, the, as a source of law, 
670-672 ; at Rome, 708-716. 

Peregrini, aliens, in Roman law, 
76, 79, 114, 570, 753. 

Persia, 10, 549, 659, 660. 

Philippine Islands, occupation 
of, by United States, 2, 28, 66, 

348, 49 1 - 
Philosophy of law, 604, 608-612, 

624-627. 
Pilgrim's Progress, The, 639. 
Pitso, of Kafirs, 137, 267, 711. 
Plato, 321, 331, 463, 567. 



INDEX 



921 



Plebiscite, amendment of con- 
stitution by, 131, 180. 

Pliny, the elder, 588. 

Plutarch, 807. 

Poland, partition of, 240 ; Ro- 
man law in, 93, 94. 

Political Science Quarterly, 
The, 900. 

Pollock, Sir F., 553, 555, 569, 
601, 731, 810, 814, 815, 818, 
820, 826. 

Polyandry, in ancient times, 784. 

Polybius, 7, 124. 

Polygamy, among Eastern peo- 
ples, 119, 784, 855. 

Pontifices, oversight over mar- 
riage, 814. 

Pope, the, as sovereign, 529 ; 
jurisdiction over marriage, 
814, 826. 

Popular assembly, as source of 
law at Rome, 130, 708-716. 

Population, growth of, 493. 

Portuguese empire, 46, 248. 

Possession, in Roman and Eng- 
lish law, 624, 626, 866. 

Post-graduate studies, 904. 

Praetorian edict compared with 
case law, 698-708. 

Praetorian prefect, 725. 

Praetors, the, 574, 619, 631, 691- 
695, 698-701, 706-708, 753. 

Pre-contract, impediment to 
marriage, 816, 827. 

President, the : his position in 
the constitution of the United 
States, 308, 312, 316,334, 344, 
350, 508 ; in the Orange Free 
State, 366, 368, 382, 384, 385, 
387 ; in the South African Re- 
public, 371, 372, 382, 384, 385, 
389- 



Press, influence of the, 156, 335, 

349. 493- 

Priests, in Iceland, 267. 

Primary assemblies, 137, 267, 
362, 711. 

Privy Council, appeal to, 96, 100, 
106, 147, 234, 768 ; under Aus- 
tralian constitution, 426, 427. 

Procedure Codes, in India, 104, 
108. 

Procedure, law made through, 
697. 

Procopius, 50. 

Profession of law, at Rome and 
in England, 682, 683. 

Prohibited degrees of marriage, 
806-808, 815. 

Protected states, in Roman and 
Indian empires, 5, 30, 31, 

547- 
Protective tariff, in the United 

States, 329, 343 ; in Australia, 

450. 
Protectorate, the, in England, 

139, 150, 170, 512, 519. 
Protestantism, 474, 488. 
Province, meaning of the word, 

30 ; in Canada, 411. 
Provincial government, under 

Roman empire, 22, 23, 25, 27, 

77, 78. 
Prussia, constitution of, 171, 483. 
Public schools, 479. 
Puerto Rico, acquisition of, by 

United States, 197, 348. 
Puritanism of New England, 

3o5. 329- 

Quaestiones perpetuae, 741. 
Queensland, 224. 
Quorum, for amendment of con- 
stitution, 178. 



922 



INDEX 



Rabbis, the, 645. 

Racial feeling, as political force, 
224, 225. 

Railways, in India, 12, 18; in 
United States, 347 ; in Aus- 
tralian constitution, 436, 
458. 

Rajputs, 54. 

Ratio decidendi, 698. 

Reason, as ground of political 
obedience, 463-466, 472-474 ; 
of the Stoics, 568. 

Referendum, the, 130, 180, 349, 
397,438, 521. 

Reformation, influence on law, 
764 ; on marriage law, 813, 
826, 839. 

Regular marriage, 812. 

Religion, relations of law to, 
638-668 : apparent antago- 
nism, 638, 639 ; close connex- 
ion in early times, 639-643 ; 
differences between different 
peoples, 643 ; Jews in Roman 
times, 644; primitive Christi- 
anity, 645 ; illustrations from 
El Azhar, 646-655 ; mediae- 
val universities, 655-657 ; ar- 
rested development of Musul- 
man universities, 658-665 ; dif- 
ferences in Christianity, 665- 
668. 

Religious feeling : in ancient 
and modern world, 44-47 ; ef- 
fect of, in Roman and Indian 
empires, 56-59 ; no obstacle 
to spread of Roman law, 87 ; 
as political force, 225, 226, 
234-236, 239, 340. 

Reports, in English law, 685- 
687. 

Representative Government : no 



place in the ancient world, 27 ; 
or in India, 42. 

Rescripts of Roman emperors, 
722. 

Resolutions (besluite) of Trans- 
vaal Volksraad, 377-380. 

Responsa, in Roman law, 678, 
682. 

Restitution of conjugal rights, 
823. 

Rhodesia, Southern, 605. 

Rights of Man, 243, 599. 

Rigid and flexible constitutions, 
124-213. 

Ritchie, D. G., 555, 569. 

Rivers, importance of, in Aus- 
tralia, 400, 436. 

Riwaks, at El Azhar, 653, 654. 

Road builders, Roman and Eng- 
lish, 17-20. 

Romano-Germanic empire, 90- 
91, 166, 226, 239, 254, 443, 510, 

529. 53o, 59 8 - 
Rome : Roman empire com- 
pared with Indian empire, 5- 
65 ; diffusion of Roman law by 
conquest, 75-84 ; establish- 
ment of one law for the empire, 
84-89 ; extension of Roman 
law after fall of western em- 
pire, 89-94; Romantlaw com- 
pared with Indian law, 114- 
117 ; present position of Ro- 
man and English law, 121- 
123 ; constitution of, 124, 125, 
133-135. Ho, 144-146, 148, 
154, 161, 162 ; political reli- 
gion, 235, 481 ; few national 
revolts, 239 ; no race preju- 
dices, 246, 248 ; empire es- 
tablished by conquest, 258 ; 
succession of emperors, 518; 



INDEX 



923 



Roman views of sovereignty, 
524-528 ; Roman conception 
of ins gentium, 570-586 ; 
meaning of Nature in Roman 
jurists, 586-593 ; philosophical 
treatment of Roman law, 628- 
637 ; jurists as makers of law, 
676-687 ; magistrates as mak- 
ers of law, 687-708 ; legisla- 
tion by popular assembly, 708- 
716 ; legislation by senate, 
716-720 ; legislation by em- 
peror, 720-730 ; chief epochs 
of legal change, 747-749 ; out- 
line of legal changes, 751-761 ; 
legal development compared 
with England, 769-776 ; early 
form of marriage law, 786-789; 
change from earlier to later 
system, 789-791 ; later mar- 
riage law, 791. 

Romilly, 103, 864. 

Rousseau, criticized, 464-466, 

599- 

Rules, by delegated authority, 

688. 
Russia : extension of dominion 
by, 2, 7, 48, 49, 66 ; adoption 
of Roman law by, 73, 93 '< 
fundamental laws of the em- 
pire, 137 ; influence of Ortho- 
dox Church, 236 ; sovereignty 
in, 506, 674 ; marital right of 
chastisement, 819; divorce, 
840. 

Sacrament of marriage, 808, 812, 

826. 
Sagas, 286, 287, 295. 
Sale of wife by husband, 787, 

819. 
Sallust, 572. 



Salt tax, in Roman and Indian 
empires, 33, 34. 

Sand River Convention, 362. 

Sassanid kings of Persia, 10, 17, 
44, 239, 785. 

Savigny, 112, 633,879, 884, 898. 

Scaevola, Q. Mucius, 286, 576, 
683. 

Scandinavia, extension of Ro- 
man law to, 94. 

Scientific frontiers, 15-17. 

Scotland : has adopted Roman 
law, 73, 91 ; national life, 243 ; 
little influence on English law, 
772 ; marriage law, 817 ; law 
of divorce, 827, 829, 841. 

Scribes, the, 644. 

Second marriage, discouraged 
by early Christianity, 806. 

Second Volksraad, in Transvaal, 

374- 

Self-help, 492. 

Senate, the : its position in Rome, 
154, 155, 525 ; in the United 
States, 308, 314, 336, 352, 421, 
433> 435 ; m Australian Com- 
monwealth, 421-423, 430-435, 
448 ; assource oflaw at Rome, 
716-720. 

Senatus consulta, 719-721. 

Seneca, quoted, 802. 

Separate property, of wife, 821- 
823. 

Separation of husband and wife, 
828. . 

Septennial Act, 538. 

Servia, constitution of, 178, 179. 

Settlement, prenuptial, 821. 

Sheik ul Islam, the, 511, 648, 664, 
724. 

Siam, 16, 233. 

Sidgwick, H., 555. 



924 



INDEX 



Sigismund, laws of, 760. 

Signore, of Italian city, 145, 
502. 

Sikkim, 21. 

Slavery : in Iceland, 288 ; in the 
United States, 189, 305, 313, 
328, 329. 342, 348, 356; for- 
bidden by Transvaal constitu- 
tion, 370 ; in Roman law, 583, 
628. 

Slavonic law, 93. 

Smith, Goldwin, 170, 906. 

Smith, John William, 630, 686. 

Smith, Sir Thomas, 553. 

Social contract, 464-466, 599. 

Social Democrats, 604. 

Socrates, 566. 

Sonderbund, war of the, 239, 

399- 
Sophocles, quoted, 213, 565. 
South Africa, constitution of the 

two Dutch Republics, 133, 168, 

359-39°. 548. 

South American republics, 168, 
179, 2ii, 214, 502, 513, 518, 
519. 

South Carolina, no divorce, 831. 

Sovereignty, 503-555 : confu- 
sions regarding the term, 503- 
505 ; legal or de iure sove- 
reignty, 505-511 ; practical or 
de facto sovereignty, 511-515 ; 
relations of legal to practical 
sovereignty, 515-523 ; Roman 
and mediaeval views, 523-530 ; 
modern theories, 531-541 ; 
questions liable to be con- 
founded, 541-546 ; in interna- 
tional relations, 546-549 ; in a 
federation, 549-552 ; recent 
discussions, 554, 555. 

Spain, constitution of, 176, 511. 



Spanish Empire, in America, 5, 

7, 34, 46, 48, 248, 356. 
Spinoza, 598. 
Spoils system, in United States, 

313, 317. 349- 
Sponsalia, 792. 
St. Augustine, 594. 
St. Chrysostom, quoted, 594. 
St. German, Christopher, 600. 
St. Leonards, Lord, 629, 680. 
St. Paul, quoted, 58, 528, 594, 

638. 
St. Peter, quoted, 528. 
St. Thomas Aquinas, 529, 594. 
Statistics of divorce in America, 

834-839- 

Statute de donis, 764. 

Statute of Frauds, 766. 

Statute of Uses, 96, 704, 765. 

Statute of Wills, 765. 

Statute quia emptores, 764, 770. 

Stephen, Sir J. F., codification 
of Indian law by, no. 

Stephen, Leslie, 615. 

Stoics, the, 568. 

Story, Justice, 684. 

Stowell, Lord, 685, 812, 817. 

Stubbs, Bishop, 498. 

Suetonius, 44, 718, 785, 801. 

Sulla, 139. 

Sultan of Turkey, 511, 514. 

Suzerainty of England over 
Transvaal, 388. 

Swiss Confederation, constitu- 
tion of, 130, 195, 252, 393, 418, 
420, 438 ; divorce in, 839, 
840. 

Sympathy, as ground of political 
obedience, 470. 

Tacitus, quoted, 264, 268, 784, 
807. 



INDEX 



925 



Tacking- of bills, prohibited in 

Australian constitution, 433. 
Teaching of law : at Rome, 682; 

at Oxford, 860-907. 
Ten Commandments, 501. 
Territorial expansion, capacity 

of constitutions for, 164-167. 
Teutonic law, 94, 288, 621, 776, 

814. 
Theal, Dr., 361, 363..' 
Theodorich, edictum of, 760. 
Theodosius II, code of, 88, 586, 

758, 759- 

Theology, identified with law, 
640-646, 660. 

Thing, or assembly, in Iceland, 
267-271, 711. 

Thingvellir, in Iceland, 271, 276- 
278. 

Thucydides, 512. 

Thuggi, 21. 

Thule, 264. 

Tocqueville, Alexis de : his De- 
mocracy in America, 319-358 ; 
his insufficient knowledge of 
England, 323 ; his preoccupa- 
tion with France, 324 ; his de- 
scription of the United States, 
332-347 ; examination of his 
views, 347-355- 

Torts, law of, in India, 98, 101, 
105. 

Trade, as a consolidating influ- 
ence, 222, 346, 400. 

Trade Unions, in America, 487, 
492. 

Trajan, 9, 25, 721. 

Transvaal, the, 168, 359-390 ; 
constitution of the South Af- 
rican Republic, 369-374 ; ob- 
servations, 374,375; is it a rigid 
or a flexible constitution ? 375- 



380 ; observations on its work- 
ing, 380-388 ; recent history, 
388-390. 

Transylvania, 246. 

Trebatius, 704. 

Trent, Council of, 812. 

Tribonian, 526, 684, 759-761. 

Tribute, in Roman, but not in 
Indian empire, 34, 35. 

Trusts, commercial, 203, 487. 

Trusts, in law, 106, 704. 

Tunis, 548. 

Twelve Tables, the, 154, 284, 

714. 747, 751-753. 755- 
Tyrant, in Greece, 502, 537, 544. 

Ukase, 722. 

Ulfljot, founder of the Althing in 
Iceland, 271, 287. 

Ulpian, quoted, 135, 581, 583, 
588, 590, 634, 692, 759, 782. 

Ulster custom, 673. 

United States : law of, 95 ; con- 
stitution of, 126, 168, 172, 177, 
179, 180, 181, 183, 187, 188, 
189, 192, 195, 199, 202, 232, 
241, 244, 247, 250-252 ; consti- 
tution as seen in the past, 301- 
358 ; constitution as seen in 
The Federalist, 302-307 ; pre- 
dictions of the opponents of 
the constitution, 307-309 ; 
views of the supporters of the 
constitution, 309-313 ; criti- 
cism of both opinions, 314-319; 
the Democracy in America 
of Tocqueville, 319-328 ; his 
views and impressions, 328- 
347 ; examination of them, 
347-355 ; subsequent history, 
357 ; constitution compared 
with South African republics, 



926 



INDEX 



368, 384 ; compared with Aus- 
tralian Commonwealth, 398, 
406, 411, 413/414, 417, 419- 
421-423, 428, 431, 433, 44°- 
443, 445 ; boss system, trade 
unions, trusts, 47 ; growth of 
population and wealth, 493, 
494 ; divided sovereignty, 506, 
508, 510, 511, 540, 549-552 ; 
legislation by Congress, 732- 
735 ; marriage law, 783 ; vary- 
ing laws of divorce, 830-833 ; 
statistics of divorce, 834-839. 

Universities, Musulman and 
mediaeval, 654-658 ; in India, 
48, 61, 62 ; in Germany, 236, 
237, 646 ; in America, 348. 

Urbs became orbis, 114, 749. 

Utility, 568, 613, 614. 

Vacarius, at Oxford, 861, 889. 

Valedictory lecture, 887-907. 

Vangerow, Dr. K. A. von, 633, 
870, 898. 

Verres, 22, 24, 80. 

Veto : none in South African 
republics, 368, 381 ; under 
Australian constitution, 440, 
449 ; of crown in parliament, 
526, 715. 

Vigfusson, GuSbrand, 278. 

Vikingry, 270. 

Village Councils, in India, 27, 
28. 

Villiers, Melius de, 364. 

Vinerian professorship at Ox- 
ford, 684, 863, 875, 888. 

Vinculum matrimonii, divorce 
from, 826, 828. 



Virgil, 60 ; quoted, 265, 527, 584. 

Voigt, Moriz, 569. 

Volksraad, the : of the original 
Dutch emigrants, 362 ; of the 
Orange Free State, 364, 366 ; 
of the South African Repub- 
lic, 370-372 ; the Second 
Volksraad, 374; predominance 
of the Volksraad in the con- 
stitution, 381, 385. 

Wages, rise of, 494. 

Wakf (= endowments), at El 

Azhar, 97, 654. 
Wapentake, in Iceland, 291. 
Washington city, 343. 
Washington, George, 303, 306, 

450. 
West Indies, under English law, 

73- 
Whig party, in United States, 

346, 351- 
Wife. See Marriage. 
Will, as a political force, 474, 

475- 
Willcox, W. F., 834, 838. 
Wills, in Musulman law, 648 ; 

Hindu law of, 106. 
Women's suffrage, in Australia, 

423, 448, 454, 455. 
Wordsworth, quoted, 562. 
Written constitutions, 126, 

127. 

Xenophon, quoted, 567. 
Yelverton, 601. 
Zollverein, 223, 232, 233. 



THE END 



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